Case 4:23-cv-01147-ALM Document 98 Filed 02/27/25 Page 1 of 9 PageID #: 6534
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`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`SHERMAN DIVISION
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`R2 SOLUTIONS LLC,
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`Plaintiff,
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`v.
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`DATABRICKS, INC.,
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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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`DEFENDANT DATABRICKS, INC.’S SUR-REPLY IN OPPOSITION TO PLAINTIFF’S
`MOTION TO COMPEL DISCOVERY AND AMEND THE SCHEDULING ORDER
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`Case 4:23-cv-01147-ALM Document 98 Filed 02/27/25 Page 2 of 9 PageID #: 6535
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`In the eleventh-hour at the close of fact discovery, R2 realized that its focus on accusing
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`open-source Apache Spark technology was flawed because the asserted ’610 patent is licensed by
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`virtue of Yahoo’s contributions to open-source Spark. (See Mot. at 9 (admitting Databricks’ open-
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`source license defense is “nuclear” and “would end the case”).) Realizing its strategic error, R2
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`filed its motion to compel discovery on
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` in a desperate attempt to reopen fact
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`discovery for a do-over of R2’s infringement case. But at no point during the last fourteen months
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`of this case did R2 accuse
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` in any of R2’s infringement contentions. Nor has R2 ever
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`sought leave to amend its contentions to accuse these features. R2 thus asks this Court to permit
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`it to start fresh, because it focused on the wrong accused functionality, despite knowing about
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`Photon as early as its Complaint and strategically choosing to drop and not to accuse Photon in
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`any of its contentions. And while R2 nevertheless sought discovery on Photon, it ultimately
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`decided to drop that request in favor of a source code stipulation that the accused open-source
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`Apache Spark functionality is representative of Databricks’ internal implementation of Spark.
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`(Dkt. 73.) R2’s lack of diligence regarding Photon and strategic mistake to focus its infringement
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`case on open-source Spark is not a basis to reopen discovery and allow R2 the do-over it requests.
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`Desperate to manufacture a basis to accuse new products, R2 stoops to the level of making
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`outlandish and false accusations of “misrepresentations” and “misconduct.” (Reply at 1.) But,
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`contrary to R2’s unsupported attorney arguments, Databricks has gone above and beyond its
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`discovery obligations. Databricks provided all required discovery on the feature that R2 accused:
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`Apache Spark, including over 11,000 documents over the course of discovery that refer to Spark
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`and every version of Apache Spark source code. Moreover, Databricks produced over 400
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`documents describing Photon and provided deposition testimony from multiple witnesses about
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`1
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`Case 4:23-cv-01147-ALM Document 98 Filed 02/27/25 Page 3 of 9 PageID #: 6536
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`the operation of
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`. Despite this discovery, R2 never accused
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` Indeed, R2 concedes that it “did not identify Photon in its contentions.” (Reply at 3.)
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`And R2 concedes that its request for
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` is actually “more precisely” a request for “
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` (Reply at 4) because
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` that R2 can credibly accuse of
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`infringement. And R2 chose to forego discovery on Photon, which has long been publicly available
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`and known to R2 at the start of this case. There is thus no basis to grant discovery on
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`, or to delay this case as R2 requests. Doing so at this late stage would be highly prejudicial
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`to Databricks.
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`I.
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`R2 NEVER ACCUSED
`SOURCE CODE ON THESE PRODUCTS
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`, SO IT IS NOT ENTITLED TO
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`R2 does not dispute that its contentions lack reference to
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`, choosing
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`instead to accuse only open-source Apache Spark. (See Reply at 2-4.) Indeed, R2 expressly admits
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`that it “did not identify Photon in its contentions.” (Id. at 3.) This is fatal to R2’s Motion because—
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`as this Court recently explained to R2 when it denied a similar motion to compel—“[i]nfringement
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`contentions serve the critical function of defining the scope of discovery.” R2 Sols. LLC v. Am.
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`Airlines, Inc., No. 4:22-cv-00353-ALM, 2023 WL 3938862, at *3 (E.D. Tex. June 9, 2023). R2
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`never sought leave to amend its infringement contentions, so it is not entitled to discovery on the
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`unaccused products. Id. at *4.
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`R2 now argues in the alternative that it did accuse
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` because its
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`contentions identified the “Databricks Data Intelligence Platform/Databricks Lakehouse Platform”
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`and
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`.” (Dkt. 87 at 2 (emphasis in original).) But
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`simply identifying Databricks’ entire platform does not entitle R2 to source code on all
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`functionality included in the platform—whether relevant or not, and whether accused or not by
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`R2. Again, as this Court has already explained to R2, the Patent Local Rules require a patentee
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`2
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`Case 4:23-cv-01147-ALM Document 98 Filed 02/27/25 Page 4 of 9 PageID #: 6537
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`“to identify each accused instrumentality—in a manner that is ‘as specific as possible,’” and this
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`rule serves to “prevent the shifting sands’ approach’ to patent litigation.” R2 Sols. LLC, 2023 WL
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`3938862, at *3; see also P.R. 3-4(a) (limiting required production of source code to that “sufficient
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`to show the operation of any aspects of elements of an Accused Instrumentality identified by the
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`patent claimant in its P.R. 3-1(c) chart” (emphasis added).)1
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`II.
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`R2’S ALLEGATIONS OF WRONGDOING BY DATABRICKS ARE FALSE AND
`DO NOT EXCUSE ITS DECISION NOT TO ACCUSE PHOTON
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`As R2 admits, it chose to “not identify Photon in its contentions.” (Reply at 3.) Now, in
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`a late effort to redo its case, R2 contends that Databricks misled it into believing that “Photon only
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`enhanced Spark.” (Id. at 2.) This is demonstrably false. (See Opp.) And although Databricks
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`would rather focus on the merits of R2’s motion, it is now compelled to correct the record for the
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`Court, given R2’s repeated inflammatory and false statements about Databricks’ conduct.
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`Not only did Databricks never make this claim or ever “obfuscate” Photon as R2 alleges,
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`Databricks produced hundreds of pages of Photon technical documents even though it was not
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`accused, and provided extensive deposition testimony about its operation. (See Opp. at 4-6.) And
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`at no point did Databricks represent to R2 that Photon
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`. (See Kaempf Decl., ¶¶ 2-4.) In fact, a cursory review of the plethora of documents
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`produced in this case and available online would have informed R2 otherwise. (See Opp. at 4-5.)
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`During fact discovery, the discussion about the scope of Photon centered around
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`. (Kaempf Decl., ¶ 2.) Databricks then explained that
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`1 This Court also previously denied R2’s similarly overbroad request for executable code, which
`would have required production of source code spanning features and functionalities of the
`Databricks platform that are not accused, in relevant part because “the burden of producing
`voluminous, irrelevant code” would “unduly prejudice Defendant.” (Dkt. 60 at 3.)
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`3
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`Case 4:23-cv-01147-ALM Document 98 Filed 02/27/25 Page 5 of 9 PageID #: 6538
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`—a statement that is true and correct. (Id. at ¶ 3.) At no point did
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`Databricks ever characterize
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`. (Id.)
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`III.
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` DOES NOT EXCUSE R2’S DECISION NOT TO ACCUSE PHOTON
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`R2 also asserts its recent discovery of
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` requires reopening fact discovery because
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` (Reply at 4
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`(emphasis added).) As an initial matter, R2’s statements elucidate that R2 can
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`. This is fatal to R2’s Motion because, again, R2 has long known about
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`Photon and never accused it of infringement. The Court should reject any discovery requests that
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`rely on the publicly available Photon feature,
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`.
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`Moreover, Databricks never hid
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` as R2 baselessly contends. It is simply
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`in detail,
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`. Indeed, as Databricks’ Opposition and supporting declaration explain
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`. (Opp., Ex. I at 277:21-278:4, 279:1-8.) R2’s
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`request for discovery on products it never accused should therefore be denied because, “[a]fter all,
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`‘[i]f the parties were not required to amend their contentions promptly after discovering new
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`information, the contentions requirement would be virtually meaningless as a mechanism for
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`shaping the conduct of discovery.’” R2 Sols. LLC, 2023 WL 3938862, at *3.
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`IV. NO GOOD CAUSE EXISTS TO RE-OPEN FACT DISCOVERY AND EXTEND
`CASE DEADLINES BY 60 DAYS
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`R2 merely repeats its baseless claims based on its allegations of wrongdoing by Databricks
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`for the first, second, and third factors of the applicable four-factor test. Its arguments fail for the
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`reasons laid out above. On the third factor regarding costs, a number of witnesses, such as
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`Databricks’ technical 30(b)(6) witnesses, would be required to sit for a second deposition in view
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`Case 4:23-cv-01147-ALM Document 98 Filed 02/27/25 Page 6 of 9 PageID #: 6539
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`of the newly accused product. However, if R2 had timely sought the discovery it now demands,
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`all questioning would have occurred in the depositions that have already taken place. Similarly,
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`Databricks will necessarily have to supplement its non-infringement contentions and invalidity
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`contentions in view of R2’s brand new infringement theories. Thus, as explained in the case law
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`R2 cites, a delay in the schedule now would result in prejudicial costs to Databricks. See
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`Sustainable Modular Mgmt, Inc. v. Travelers Lloyds Ins. Co., No. 3:20-cv-1883, 2021 WL
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`4822017, at *11 (N.D. Tex. Oct. 15, 2021). Moreover, Databricks incurred extensive costs in
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`developing its affirmative licensing defense based on the open-source Apache Spark functionality
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`on which R2 focused its infringement case. To develop this defense Databricks (1) subpoenaed
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`many third parties to uncover large volumes of supporting evidence, including Yahoo, Yahoo
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`employees, and the Apache Software Foundation, (2) conducted several depositions of Yahoo
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`employees, (3) prepared extensive responses to R2’s interrogatories directed to this defense, and
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`(4) prepared an opening expert report that details this defense. R2’s request to redo its
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`infringement case, is thus, a ploy to moot the extensive effort Databricks has expended to build
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`this license defense—a defense that R2 admits is “nuclear” and would “end the case.”
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`Finally, R2 falsely claims without basis that 60 days provides sufficient time for Databricks
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`to respond to R2’s new allegations. Unlike the plaintiff in Polaris PowerLED Technologies, LLC
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`v. Samsung Electronics America, Inc., which R2 cites in support of its motion, R2 does not seek
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`merely a limited deposition and supplemental rebuttal report. Instead, R2 requests reopening of
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`discovery for a do-over in this case that would permit wholly new accused products and brand new
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`infringement theories, which for the reasons above, would require far longer than the requested 60
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`days. Therefore, all four factors continue to weigh heavily in favor of denying R2’s request to
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`reopen fact discovery and delay case deadlines so that it can redo its case.
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`Case 4:23-cv-01147-ALM Document 98 Filed 02/27/25 Page 7 of 9 PageID #: 6540
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`Dated: February 20, 2025
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`Respectfully submitted,
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`/s/ Jessica M. Kaempf
`Jessica M. Kaempf
`WA Bar No. 51666 (Admitted E.D. Texas)
`Email: jkaempf@fenwick.com
`Jonathan G. Tamimi
`WA Bar No. 54858 (Admitted E.D. Texas)
`Email: jtamimi@fenwick.com
`FENWICK & WEST LLP
`401 Union Street, 5th Floor
`Seattle, WA 98101
`Telephone:
`206.389.4510
`Facsimile:
`206.389.4511
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`Michael J. Sacksteder
`CA Bar No. 191605 (Admitted E.D. Texas)
`Email: msacksteder@fenwick.com
`Gregory Sefian
`CA Bar No. 341802 (Admitted Pro Hac Vice)
`Email: gsefian@fenwick.com
`S. Emma Lee
`CA Bar No. 344074 (Admitted Pro Hac Vice)
`Email: emma.lee@fenwick.com
`FENWICK & WEST LLP
`555 California Street, 12th Floor
`San Francisco, CA 94104
`Telephone:
`415.875.2300
`Facsimile:
`415.281.1350
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`Dargaye Churnet
`CA Bar No. 303659 (Admitted E.D. Texas)
`Email: dchurnet@fenwick.com
`FENWICK & WEST LLP
`730 Arizona Ave, 1st Floor
`Santa Monica, CA 90401
`Telephone:
`310.434.5400
`Facsimile:
`650.938.5200
`
`Vigen Salmastlian
`CA Bar No. 276846 (Admitted E.D. Texas)
`Email: vsalmastlian@fenwick.com
`FENWICK & WEST LLP
`801 California Street,
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`Case 4:23-cv-01147-ALM Document 98 Filed 02/27/25 Page 8 of 9 PageID #: 6541
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`Mountain View, CA 94041
`Telephone:
`650.988.8500
`Facsimile:
`650.938.5200
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`Attorneys for Defendant
`Databricks Inc.
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`Case 4:23-cv-01147-ALM Document 98 Filed 02/27/25 Page 9 of 9 PageID #: 6542
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`CERTIFICATE OF AUTHORIZATION TO SEAL
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`Pursuant to Local Rule CV-5(a)(7)(B), I am authorized to file the foregoing document
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`under seal pursuant to the Protective Order (Dkt. 61) because this document references Designated
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`Material.
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`Dated: February 20, 2025
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`/s/ Jessica M. Kaempf
`Jessica M. Kaempf
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that a true and correct copy of the above and foregoing
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`document has been served on all counsel of record who are deemed to have consented to electronic
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`service via the Court’s CM/ECF system. Additionally, I hereby certify that all counsel of record
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`who have consented to electronic service are being served with a copy of these documents via
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`electronic mail per Local Rule CV-5.
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`Dated: February 20, 2025
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`/s/ Jessica M. Kaempf
`Jessica M. Kaempf
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