Case 5:19-cv-00036-RWS Document 200 Filed 02/24/20 Page 1 of 6 PageID #: 8569
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TEXARKANA DIVISION
`
`MAXELL, LTD.,
`
`
`
`Plaintiff
`
`Civil Action NO. 5:19-cv-00036-RWS
`
`v.
`
`APPLE INC.,
`
`
`
`
`
`JURY TRIAL DEMANDED
`
`
`
`
`Defendant.
`
`
`
`
`
`APPLE INC.’S PRELIMINARY RESPONSE TO
`MAXELL LTD.’S MOTION TO COMPEL1
`
`
`
`1 Pursuant to the parties’ agreement, Apple responds on an expedited basis to the issues Maxell
`raised in its December 18, 2019 letter. Apple will separately address, in accordance with this
`Court’s normal briefing schedule, the other issues raised in Maxell’s motion, most of which were
`never even discussed in a meet and confer as required by this Court’s standing order. While
`Maxell acknowledges its motion raises issues not subject to the expedited briefing agreement, it
`appears to have an incorrect understanding of what was subject to that agreement, which could
`have been sorted out, had Maxell followed the Court’s standing order and properly engaged in a
`meet and confer before filing this motion.
`
`
`
`

`

`Case 5:19-cv-00036-RWS Document 200 Filed 02/24/20 Page 2 of 6 PageID #: 8570
`
`Continuing in its unabashed, scorched-Eai1h approach to discovery, Maxell's motion
`
`exposes the tme motive behind that approach: to trash Apple before this Comt at eve1y
`
`opportunity. Indeed, Maxell filed its motion to compel only after willfully ignoring this Court's
`
`standing order requiring it to actually meet and confer on each and eve1y pm-ported "dispute" it
`
`now raises. And its only excuse for ignoring this Comt's standing order is that, for some of the
`
`documents at issue, Apple requested a couple of days to investigate so it could present a definite
`
`response. Indeed, the majority of the documents Apple was investigating have now been
`
`produced. Even as to those issues that the pa1ties properly discussed, Maxell now demands
`
`documents that Apple has ah·eady provided or is in the process of providing, or that Maxell never
`
`specifically requested before filing its motion, but that Apple will nonetheless be producing.
`
`The chaotic state ofMaxell's demands encapsulates its approach to discove1y: vaguely
`
`alleging discove1y deficiencies without specifying any issues for the pai1ies to resolve, then
`
`rnnning to comt with aspersions of nefarious intent and misconduct. This contravenes the stated
`
`goal of"maximiz[ing] the best use of the Com1's limited resomces." 6/3/16 Standing Order re
`
`Meet and Confer. Accordingly, Maxell's motion should not only be denied, but Maxell should
`
`be sanctioned for its failme to respect the Com1's standing order. Id.
`
`Apple now responds to those issues for which it agreed to expedited briefing. The
`
`remaining issues will be addressed in a final response to be filed by the applicable deadline.
`
`Technical Documents:
`
`1
`
`

`

`Case 5:19-cv-00036-RWS Document 200 Filed 02/24/20 Page 3 of 6 PageID #: 8571
`
`• Application Processor Chipset User Manual/ Micro-Architecture Specification: As
`Maxell acknowledges, Apple ah·eady conducted a reasonable investigation and produced
`responsive manuals/specifications. Prior to receiving Maxell's motion, Maxell never told
`A
`le that it believed such documents were missino for an
`articulai- chi set.
`
`• Technical Specifications / Software Design Guides / Firmware Device Specification /
`Hardware Abstraction Layer Specifications: Contra1y to Maxell's mischaracterization,
`Apple conducted a reasonable search for and produced a substantial number of technical
`documents describing the design, development, or operation of accused functionalities,
`including specifically those identified in Maxell's motion. For example, for "Bluetooth
`functionality" alone, Apple produced approximately 90 such documents. Ex. B, Exemplary
`Cites. While Maxell may not believe that other documents could not be located (DI 197 at 3
`n.3), that is the case and Maxell will have the opportunity to explore that further in
`depositions. Apple has no obligation to turn over eve1y rock and interview eve1y engineer in
`the company looking for documents that Maxell believes may exist.
`
`• Source Code: On Januaiy 31, 2020, Apple provided Maxell a detailed chait listing what
`Apple understood to be Maxell 's last source code requests, and that confirmed Apple' s
`understanding that it had already satisfied those requests or, for a few, would be satisfied by
`Februaiy 12. Apple later confumed its satisfaction of the open items in a Februa1y 14 letter.
`Rather than respond to either letter, and before even inspecting what Apple had produced,
`Maxell ran to comt. But, for at least 9 of the 14 projects that Maxell requested, Apple has
`either already produced them or they do not exist. The remaining projects, which Maxell
`first brought to Apple's attention in its motion to compel, have already been produced. Thus,
`all somce code issues raised in Maxell's motion have been resolved.
`
`code" documents described in Maxell's motion have now already been produced twice in this
`
`: The so-called "non-somce
`
`case.
`
`See, e.g. ,
`
`Rapp v. Maxim Healthcare Servs., Inc., No. 4:13-CV-51, 2014 WL 5341872, at *2 (E.D. Tex.
`
`Sept. 30, 2014).
`
`Apple then m1de1iook the extraordinarily burdensome
`
`effo1i to seai·ch more than 1.63 M files made available in this case for documents that may not
`
`contain somce code and then review those documents to confum they contained no code. Apple
`
`2
`
`

`

`Case 5:19-cv-00036-RWS Document 200 Filed 02/24/20 Page 4 of 6 PageID #: 8572
`
`
`then produced these so-called non-source code documents for a second time, in the exact
`
`manner Maxell requested and before Maxell filed its motion to compel. Maxell’s demand that
`
`Apple reproduce these documents for a third time, in a third format, is without merit and
`
`borderline, if not outright, harassment. Indeed, the exhibit Maxell submits clearly demonstrates
`
`that, contrary to Maxell’s representation, the electronic PDF documents are just as legible as they
`
`would be in native format. Ex. C, APL-MAXELL_01196622 (zoomed in). Indeed, if one
`
`printed the native documents they would look identical to the PDFs as produced.
`
`Forecast Documents: As Maxell acknowledges, Apple has already produced the
`
`-
`
`forecasts used in Apple’s business operations, including two internal forecasts.
`
`
`
`
`
` To the extent Maxell complains that Interrogatory
`
`No. 9 was not yet updated, that has been addressed and a supplemental response served today.
`
`For the above reasons, and the reasons to be set forth in Apple’s to be filed final
`
`response, Maxell’s motion to should be denied and Apple awarded costs.
`
`
`
`
`
`
`
`
`
`3
`
`

`

`Case 5:19-cv-00036-RWS Document 200 Filed 02/24/20 Page 5 of 6 PageID #: 8573
`
`
`February 20, 2020
`
`
`
`
`
`
`/s/ Luann L. Simmons
`
`
`
`Luann L. Simmons (Pro Hac Vice)
`lsimmons@omm.com
`O’MELVENY & MYERS LLP
`Two Embarcadero Center
`28th Floor
`San Francisco, CA 94111
`Telephone: 415-984-8700
`Facsimile: 415-984-8701
`
`Xin-Yi Zhou (Pro Hac Vice)
`vzhou@omm.com
`Anthony G. Beasley (TX #24093882)
`tbeasley@omm.com
`O’MELVENY & MYERS LLP
`400 S. Hope Street
`Los Angeles, CA 90071
`Telephone: 213-430-6000
`Facsimile: 213-430-6407
`
`Laura Bayne Gore (Pro Hac Vice)
`lbayne@omm.com
`O’MELVENY & MYERS LLP
`Times Square Tower, 7 Times Square
`New York, NY 10036
`Telephone: 212-326-2000
`Facsimile: 212-326-2061
`
`Melissa R. Smith (TX #24001351)
`melissa@gilliamsmithlaw.com
`GILLIAM & SMITH, LLP
`303 South Washington Avenue
`Marshall, Texas 75670
`Telephone: (903) 934-8450
`Facsimile: (903) 934-9257
`
`Attorneys for Defendant Apple Inc.
`
`4
`
`

`

`Case 5:19-cv-00036-RWS Document 200 Filed 02/24/20 Page 6 of 6 PageID #: 8574
`
`CERTIFICATE OF SERVICE
`
`The undersigned hereby ce1t ifies that all counsel of record who are deemed to have
`
`consented to electronic se1v ice are being se1ved with a copy of this document via the Com t's
`
`CM/ECF system per Local Rule CV-5(a)(3) on Febrnaiy 20, 2020.
`
`Isl Melissa R. Smith
`Melissa R. Smith
`
`5
`
`