Case 1:20-cv-00034-ADA Document 127 Filed 01/27/21 Page 1 of 37
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` UNITED STATES DISTRICT COURT
` WESTERN DISTRICT OF TEXAS
` AUSTIN DIVISION
`ANCORA TECHNOLOGIES,
`) Docket No. A 20-CA-034 ADA
`INC.
`)
` )
`vs.
` ) Austin, Texas
` )
`LG ELECTRONICS, INC.,
`)
`LG ELECTRONICS USA, INC.,)
`SAMSUNG ELECTRONICS
`)
`AMERICA, INC., SAMSUNG
`)
`ELECTRONICS CO., LTD.
`) October 15, 2020
`
` TRANSCRIPT OF TELEPHONIC DISCOVERY HEARING
`BEFORE THE HONORABLE ALAN D. ALBRIGHT
`
`APPEARANCES:
`For the Plaintiff:
`
`For LG Electronics:
`
`Mr. Andres Healy
`Mr. Steven M. Seigel
`Susman Godfrey, LLP
`1201 3rd Avenue, Suite 3800
`Seattle, Washington 98101
`Mr. Charles L. Ainsworth
`Mr. Robert Christopher Bunt
`Parker, Bunt & Ainsworth, P.C.
`100 East Ferguson, Suite 418
`Tyler, Texas 75702
`
`Mr. Winstol D. Carter, Jr.
`Ms. Elizabeth M. Chiaviello
`Mr. Thomas R. Davis
`Morgan, Lewis & Bockius, LLP
`1000 Louisiana Street, Suite 4000
`Houston, Texas 77002
`
`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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`1
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`
` UNITED STATES DISTRICT COURT
` WESTERN DISTRICT OF TEXAS
` AUSTIN DIVISION
`ANCORA TECHNOLOGIES,
`) Docket No. A 20-CA-034 ADA
`INC.
`)
` )
`vs.
` ) Austin, Texas
` )
`LG ELECTRONICS, INC.,
`)
`LG ELECTRONICS USA, INC.,)
`SAMSUNG ELECTRONICS
`)
`AMERICA, INC., SAMSUNG
`)
`ELECTRONICS CO., LTD.
`) October 15, 2020
`
` TRANSCRIPT OF TELEPHONIC DISCOVERY HEARING
`BEFORE THE HONORABLE ALAN D. ALBRIGHT
`
`APPEARANCES:
`For the Plaintiff:
`
`For LG Electronics:
`
`Mr. Andres Healy
`Mr. Steven M. Seigel
`Susman Godfrey, LLP
`1201 3rd Avenue, Suite 3800
`Seattle, Washington 98101
`Mr. Charles L. Ainsworth
`Mr. Robert Christopher Bunt
`Parker, Bunt & Ainsworth, P.C.
`100 East Ferguson, Suite 418
`Tyler, Texas 75702
`
`Mr. Winstol D. Carter, Jr.
`Ms. Elizabeth M. Chiaviello
`Mr. Thomas R. Davis
`Morgan, Lewis & Bockius, LLP
`1000 Louisiana Street, Suite 4000
`Houston, Texas 77002
`
`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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`Case 1:20-cv-00034-ADA Document 127 Filed 01/27/21 Page 2 of 37
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`(Appearances Continued:)
`For LG Electronics:
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`Court Reporter:
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`Mr. Collin W. Park
`Morgan, Lewis & Bockius, LLP
`1111 Pennsylvania Avenue, N.W.
`Washington, D.C. 20004
`
`Ms. Lily Iva Reznik, CRR, RMR
`501 West 5th Street, Suite 4153
`Austin, Texas 78701
`(512)391-8792
`
`Proceedings reported by computerized stenography,
`transcript produced by computer-aided transcription.
`
`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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`Case 1:20-cv-00034-ADA Document 127 Filed 01/27/21 Page 3 of 37
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`THE COURT: Good afternoon. It's Alan Albright.
`Suzanne, would you call the case, please.
`THE CLERK: Sure.
`For telephonic discovery hearing in Civil Action
`1:20-CV-34, styled, Ancora Technologies, Incorporated vs.
`LG Electronics, Incorporated, LG Electronics U.S.A.,
`Samsung Electronics America, Incorporated, Samsung
`Electronics Company, Limited, and that's it.
`THE COURT: If I could hear announcements from
`counsel first for plaintiff and then, from defendant.
`MR. BUNT: Your Honor, this is Chris Bunt and
`Charley Ainsworth, along with Andres Healy and Steve
`Seigel for the plaintiff, and we're ready to proceed.
`THE COURT: Okay.
`MR. HEALY: Good afternoon, your Honor.
`MR. CARTER: Good afternoon, your Honor.
`This is Winn Carter for LG Electronics, and I
`have with me Collin Park, Elizabeth Chiaviello and Tom
`Davis.
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`THE COURT: Okeydokey. I have in front of me
`three issues: LG's alleged refusal to obtain and produce
`requested documents and testimony; LG's response to
`Ancora's Interrogatory No. 3, and; LG's non-production or
`alleged non-production of requested technical documents,
`including specifications and others.
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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`Case 1:20-cv-00034-ADA Document 127 Filed 01/27/21 Page 4 of 37
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`Let's start with LG's alleged refusal to obtain
`and produce requested documents related to its affiliate,
`LG CNS. And I'll hear from counsel for plaintiff first.
`MR. HEALY: Absolutely, your Honor. This is Mr.
`Healy, Susman Godfrey.
`If your Honor would indulge me, I was hoping to
`start with the technical document issue first. They sort
`of relate a little bit better, but I'm happy to start
`wherever your Honor prefers.
`THE COURT: I'm happy -- we're going to have to
`do all of them. I'm happy to do any of them in whatever
`order you think makes sense.
`MR. HEALY: Thank you, your Honor.
`Starting first with the technical document issue,
`I'd just -- very briefly, some context. More than two
`months ago, we had a hearing with your Honor on August
`10th. At that hearing, we discussed the fact that LG had
`yet to produce a single technical document related to the
`accused over-the-air, OTA, update functionality that's at
`issue in this case and what was requested the Court was
`simple. We asked the Court to order LG to perform ESI
`searches and to find and produce all of the technical
`documents that at least we are due, and I think your Honor
`somewhat agreed with us, it should have produced back in
`March.
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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`
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`Case 1:20-cv-00034-ADA Document 127 Filed 01/27/21 Page 5 of 37
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`In response, LG told the Court that running those
`searches and producing all of those documents would just
`be too burdensome. And so, this court settled on a
`compromise. Your Honor said -- and I'm quoting your Honor
`at page 21 and 22 of the transcript, which we provided as
`Exhibit 1. Your Honor said it shared our concerns, but
`nonetheless, it was going to, quote, give LG an
`opportunity to lessen the burden, end quote, that LG was
`claiming before it went to the extent of ordering the
`relief that we, the plaintiff, had requested.
`Your Honor told us, Ancora, to identify ten
`products, after which LG was to produce all of the
`technical materials we had requested for those ten
`products. And I'm sure your Honor recalls, you then said
`if there was a great difference between those materials,
`you know, that we could come back and ask for more. But
`the idea was to treat those ten products as representative
`and try and cut down on the burden that LG was claiming.
`We, Ancora, did what the Court ordered. We
`identified ten products the following day, and then, we
`waited and we waited some more and we're still waiting.
`We've yet to receive a single document. Not one. And
`then, instead, after telling after weeks that it was
`working on our requests, including when we followed up
`with Barry Taylor with specific document names, I think
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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`Case 1:20-cv-00034-ADA Document 127 Filed 01/27/21 Page 6 of 37
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`your Honor could see from some of the materials we
`provided, LG finally told us last week that it did not
`intend to produce a single document; that it had not found
`and, therefore, didn't believe any single document
`existed.
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`Your Honor, in my opinion, that's a flagrant
`violation of the Court's order. I think it's 180 degrees
`inconsistent with what LG told the Court at the August 10
`hearing. Again, it told the Court that producing all of
`the documents we had requested was going to be incredibly
`burdensome, and now it's telling us that it doesn't have a
`single document.
`Respectfully, that just doesn't pass the smell
`test for me, and I think, frankly, it's part of a larger
`problem in this case. By way of example, and I'm not
`getting into any confidential information, Samsung has
`produced more than 170,000 documents in this case,
`including a number of the kinds of technical manuals and
`materials that we are looking for from LG.
`LG has produced a grand total of 2,367 documents.
`That is an extremely small number for a patent case of
`this magnitude, and particularly when you factor in the
`fact that not a single one of that already small number is
`a technical document that describes the central accused
`functionality in this case.
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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`Case 1:20-cv-00034-ADA Document 127 Filed 01/27/21 Page 7 of 37
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`And just very briefly, your Honor, I mean, I want
`to emphasis that despite the fact that LG includes
`instructions for how to download and install the accused
`software updates that are at issue in its case in almost
`every one of its product manuals and on its website,
`despite the fact that LG has released videos emphasizing
`the value and importance of this process and encouraging
`people to use it, despite the fact that LG was and is
`contractually obligated to include this functionality in
`its accused devices, LG, one of the largest smartphone
`manufacturers in the entire world, has told us that it
`doesn't have a single technical document related to this
`functionality, which I suppose means that any time a new
`product is created, LG apparently starts from scratch
`because there's not a single document describing this
`technology. Not a single document its engineers can use
`or look to to understand this technology, which, you know,
`certainly we don't argue is something simple or trivial.
`It's robust.
`And I suppose, as your Honor can tell, I find
`that position and the representations that we've received
`completely uncredible. This is not my first time suing
`LG. In my experience, they have documents describing
`every bit of their phones and their functionality,
`particularly functionality as important as what's at issue
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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`Case 1:20-cv-00034-ADA Document 127 Filed 01/27/21 Page 8 of 37
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`here.
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`And to be frank, your Honor, you don't have to
`take my word for it. The very few documents LG has
`produced confirm that it has exactly the types of
`technical documents we are seeking. Attached as Exhibit 2
`to what I've provided your clerk this morning is an e-mail
`thread dating back to July and sort of details our
`back-and-forth on this issue and a variety of others. But
`if your Honor will turn to pages 9 and 11, you'll see that
`we haven't just sort of -- we haven't made indiscriminate
`requests. We haven't done this, you know, on a whim or on
`a mere suspicion.
`We've pointed LG to specific documents that LG
`has produced that specify and demonstrate that LG not only
`has the sort of documents we're looking for but was
`contractually obligated by the carriers and other entities
`to create and maintain them. The top of page 10, for
`example, states that LG was required to provide OTA
`technical documentation. It also shows that LG was
`required to comply with a document titled, SOTA Update
`Server Requirements. We don't have either of those two
`documents, your Honor.
`The bottom of page 10, we identified more amount
`of material that LG had produced, all of that showing that
`LG has had a contractual obligation and agreed to provide
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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`
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`Case 1:20-cv-00034-ADA Document 127 Filed 01/27/21 Page 9 of 37
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`reports, URLs for its servers, and a variety of other
`download information, which is one of the issues we're
`raising here today, and again, LG has produced none of
`this information. Not one document.
`And, frankly, your Honor, given all of this, our
`ask is simple. We've been very patient with LG. Probably
`too patient. So has this court. It gave LG a chance to
`do this the easy way, and instead of taking your Honor up
`on that and doing it, frankly, in our opinion, LG has
`thumbed its nose at all of us. I mean, not one document,
`to me, just extreme, your Honor. And, frankly, my client
`can't afford to continue giving LG the benefit of the
`doubt. We can't afford to trust that LG is going to
`comply with its obligations without a court order.
`Fact discovery in this case is slated currently
`to close November 13th, and my client has opening expert
`reports due one week later. And despite the fact that
`we've had, again, nearly monthly discovery hearings with
`LG and the Court, we've got less than 2,400 documents,
`we've got not one technical document. Not one of the
`documents that LG's own other requirement documents show
`it has.
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`I'm just at a bit of a loss, your Honor, because
`I, frankly, have not had a circumstance where a party has
`produced so little and with -- I mean, I'm just -- I'm at
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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`
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`Case 1:20-cv-00034-ADA Document 127 Filed 01/27/21 Page 10 of 37
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`a loss.
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`We, Ancora, need the Court's help. You know, our
`request for relief as we've talked about with LG is that
`they immediately start conducting the ESI searches that we
`requested back in August. We also asked the Court to
`order LG to -- excuse me, to immediately produce all the
`specific documents we'd requested, including the ones
`we've identified by name and Bates number for months now.
`And, frankly, your Honor, given the issues we've
`had and given our inability to sort of take LG's word for
`things, we'd also asked the Court to order LG that if
`there are documents that it's going to continue to claim
`don't exist and it doesn't have, that it provide a
`declaration from the relevant custodian both attesting to
`that fact and describing every step that was taken by LG
`to try and find that document. I think that we're
`entitled to know that a fulsome search was done before we
`get into depositions and before we have to, you know,
`start this process over again because we find an issue too
`far down the road.
`And finally, your Honor, this is not something
`that my firm does lightly, but we also think that the
`Court -- or we would ask the Court to make very clear to
`LG that it needs to start complying with its discovery
`obligations, needs to start producing the basic documents
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
`
`
`
`Case 1:20-cv-00034-ADA Document 127 Filed 01/27/21 Page 11 of 37
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`we requested, and that if it doesn't do so, that
`evidentiary sanctions are on the table.
`I know that's part of the requirements of
`ultimately issuing sanctions of that sort. And again, not
`something I request lightly, but given where we are and
`given the representations that we've received to date, I
`really just don't see another option. And I want to make
`sure that LG is aware of the seriousness of which we,
`Ancora, are taking this matter.
`Unless your Honor has any questions, I'm happy to
`stop there.
`THE COURT: Yeah. And I'll hear from Mr. Carter
`before I -- certainly before I make any decisions. But
`I'm -- if Mr. Carter tells me that there really are no
`documents, I think my likely response to that is going to
`be that LG will have to produce a 30(b)(6) witness and
`allow the plaintiff to cross-examine that person with
`respect to all the issues you have said. In terms of
`wanting affidavit, I think I would probably go with a
`pretty lengthy 30(b)(6) examination unless that's
`something that the plaintiff would not be interested.
`MR. HEALY: Your Honor, if that's the question
`for plaintiffs, we are -- or plaintiff, I'm sorry, that
`would be acceptable, as well. Certainly.
`THE COURT: Okay. Let me hear from Mr. Carter.
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
`
`
`
`Case 1:20-cv-00034-ADA Document 127 Filed 01/27/21 Page 12 of 37
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`12
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`MR. CARTER: Good afternoon, Judge.
`Congratulations on completing your first patent trial.
`THE COURT: My wife, who actually has a much more
`important job than I do -- she is an RN in an ICU hospital
`here and who works 12-hour shifts for a couple of days in
`a row -- tells me that there is a condition called a
`nurse's hangover where on the third or fourth, fifth day
`after you aren't working, you feel like you have a
`hangover. And I will tell you this morning, I was pretty
`able to understand how she felt. I'm not comparing
`anything I did to what she's doing, but it was a long and
`interesting week for sure. I learned a lot.
`MR. CARTER: I could imagine. That's good. It's
`certainly exciting.
`Judge, at the August hearing, you asked us to
`identify ten phones, we did that. We worked with Ancora
`on doing that. We identified custodians. We've gone to
`the custodians for those ten phones. We've asked them
`specifically to search their documents. These are the
`engineers that are responsible for those phones.
`And you've gotta remember, these patents are very
`old. They've expired. And a number of these products
`that are involved have expired, as well. They're no
`longer in existence and they're old. So the fact that a
`lot of these documents may be -- may no longer exist is
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
`
`
`
`Case 1:20-cv-00034-ADA Document 127 Filed 01/27/21 Page 13 of 37
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`not a surprise because it's not the type of material that
`would be kept.
`We've produced one witness already to discuss the
`issues surrounding some of these issues. We've also
`received a notice -- a deposition notice already from
`Ancora in connection with all of the deposition discovery,
`which will include the custodians, or at least some of
`them, in connection with their search for the documents.
`It's unfortunate that Ancora waited so long to
`bring this lawsuit but -- and that's what's happened is,
`from what we've been told, LG Electronics no longer has
`the types of documents that they're looking for in
`connection -- so it's not a matter of not having, or not
`producing documents, or holding documents back, it's a
`matter of not having documents to produce.
`So we welcome a 30(b)(6). That's fine. And I
`think that's the way that this would normally go. If
`there's some question about a document production, that's
`usually the course of actions being taken. But I hate to
`say, to surprise Mr. Healy, but that's just -- that's the
`information that we have. These documents are no longer
`in the custody, possession or control of LG Electronics,
`and as a result, yeah, we don't have the documents to
`produce.
`Now, the source code has been produced, and
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
`
`
`
`Case 1:20-cv-00034-ADA Document 127 Filed 01/27/21 Page 14 of 37
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`obviously that's the way that the phones operate. So that
`information has been produced and has been available. I
`believe the plaintiffs have had up to five or so experts
`examine the source code.
`THE COURT: Mr. Healy, it sounds to me like we
`need to have you take a 30(b)(6) on this.
`How soon would you be able to do that?
`MR. HEALY: Your Honor, I would agree. I'm
`certainly happy to take a 30(b)(6) on this issue. I would
`point out just a few basic -- let me answer your Honor's
`question first. We could take it as soon as LG can make
`someone available. So that's next week, we can do it that
`way. I do want to just -- I'm sorry. Go ahead, your
`Honor.
`
`THE COURT: It will be next week.
`MR. HEALY: Okay. I do want to point out just
`for your Honor's benefit, this technology, this
`functionality, you know, we filed suit, I think, less than
`a year after the patent had expired. The devices that,
`you know, we've accused of infringement were still in
`circulation at the time. This functionality is still
`included in their devices.
`So again, I guess it's frustrating to hear that
`response. And maybe this is unnecessary, given your
`Honor's ruling and I'll pipe down, but it's just
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
`
`
`
`Case 1:20-cv-00034-ADA Document 127 Filed 01/27/21 Page 15 of 37
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`frustrating to hear that. I also wanted to just make sure
`that we're all on the same page, and we have told this to
`LG previously, but the materials that we're looking for,
`we -- frankly, we've made this clear to them, I think, in
`an e-mail -- Mr. Seigel can correct me if I'm wrong -- but
`this functionality is not one that we would expect would
`vary greatly from product to product. We've made very
`clear that this documentation that we are looking for is
`at a higher level. It would apply to Android, for
`example.
`And I guess, just to wrap up and again perhaps
`unnecessary, given your Honor's ruling, but the
`contractual requirement that we've pointed to, you know,
`required LG to maintain documents that we're looking for
`for more than two years at a minimum. So the explanation
`I just shared with Mr. Winstead -- I'm sorry, Mr. Carter
`doesn't satisfy me, but perhaps again, the deposition will
`get to the bottom of it.
`THE COURT: Well, if you -- I'm giving you a full
`day to take the deposition if you need to, and, you know,
`you can go through and be as articulate -- that sounds
`kind of saying -- I didn't mean to.
`Here is what I anticipate is that you ask the
`questions in a manner where they're clear enough to me if
`I had to read it and read the answers where you covered
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
`
`
`
`Case 1:20-cv-00034-ADA Document 127 Filed 01/27/21 Page 16 of 37
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`the watershed of what you think that LG ought to have, and
`whether or not they have it, and what they did to search
`for it, and, you know, when the deposition is done, I'm
`going to assume -- because I have no reason not to. Mr.
`Carter's always, I think, done a fine job of -- I have no
`reason not to take whatever he says to me at -- on faith.
`But you'll either have a witness from LG saying
`they don't have any documents, or that they do, or
`whatever it is. But if you do a good job of a 30(b)(6)
`and then, you believe there's some reason to come back to
`me, I'll be happy to read the deposition. I've taken some
`depositions like that. I know what's going on and we'll
`go from there.
`Right now, I'm anticipating Mr. Carter's
`representation of what he did and LG's response after
`they've done a search at face value. But we'll have
`someone who's under oath on behalf of LG who will answer
`that.
`
`So what is the next topic we should take up?
`MR. HEALY: Absolutely, your Honor.
`If we could turn to the LG CNS issue and, again,
`this is one we've touched on very briefly before in a
`prior hearing. Basically our request and our concern is
`LG's ability to get documents and, otherwise, require its
`affiliate, LG CNS, to cooperate in this case. And again,
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
`
`
`
`Case 1:20-cv-00034-ADA Document 127 Filed 01/27/21 Page 17 of 37
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`17
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`your Honor, please stop me if you recall this, but I know
`you've got a lot more cases than I do. So I want to
`briefly recap why LG CNS is relevant to this case.
`As your Honor may recall, part of our
`infringement contentions here relate to the operations of
`LG servers. In response to our contentions, LG recently
`took the position that LG CNS, and not LG, operates those
`servers and/or contracts with third parties that learned
`are called content delivery networks, or CDNs, that, in
`fact, operate those servers. Again, bit of a surprise to
`us to avoid this sort of last-minute third-party discovery
`scramble that we're now mired in.
`We had asked at the initial scheduling conference
`that the Court order LG to identify all relevant third
`parties by March of this year. The Court agreed with us
`and granted that request. LG didn't identify any entities
`to its March disclosures, so we're a bit behind the eight
`ball as a result.
`But any case, after LG did disclose them, we
`immediately subpoenaed each U.S. entity. Unfortunately,
`there's a Korean entity, LG CNS -- a version of LG CNS,
`but the Korean entity. So we started the Hague process to
`get discovery from them. And your Honor also directed LG
`at the last hearing to do everything it could to assist us
`in that, getting discovery from that Korean entity.
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
`
`
`
`Case 1:20-cv-00034-ADA Document 127 Filed 01/27/21 Page 18 of 37
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`18
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`Since then, we've gotten nothing from LG CNS
`Korea. Worse, our understanding that it's actively
`precluding the CDNs from producing documents to us. For
`example, one of the CDNs has told us that LG CNS directed
`it not to produce any of its contracts with LG CNS to us,
`and as a result, it's not going to do so. Frankly, we
`were waiting for this hearing to file a motion to compel
`against the CDN in the hopes that we could get some
`resolution, but that's next in the pipeline.
`And, frankly, your Honor, our position and our
`understanding is that LG -- the LG defendants in this case
`have the power to stop all of this. How do we know? Two
`reasons. Number one, at least our position is that LG and
`LG CNS are not true third parties; they're basically
`divisions; they're alteregos in the overall LG umbrella of
`companies. In fact, when we deposed LG's e-mail
`custodian, he told us that when he wanted to collect LG's
`e-mails for this case, he went to LG CNS to get them. In
`other words, LG CNS is basically the LG Defendants' IT
`department.
`But, frankly, your Honor, there's an even clearer
`and easier way for your Honor to grant our request. LG's
`contract with LG CNS says that LG has the right to get the
`specific documents and other information from LG CNS that
`we're looking for. It also says that LG has the right to
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
`
`
`
`Case 1:20-cv-00034-ADA Document 127 Filed 01/27/21 Page 19 of 37
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`require LG CNS to cooperate in this litigation. Provided,
`your Honor, that contract is Exhibit 3, and flag the
`relevant provisions, specifically, that contract includes
`a provision at PDF, page 14, that says that party B, and
`that's LG CNS, shall actively cooperate, is the quote,
`with LG in any litigation.
`The contract also provides other rights to LG.
`PDF, page 13 requires LG CNS to provide LG with a, quote,
`user manual and handling instructions for each OTA update
`product. Again, that's the technical materials that we've
`been told don't exist. PDF, pages 7 and 8 states that LG
`CNS is obligated to collect and provide various statistics
`regarding the accused LG OTA updates downloads. Again,
`something else we've been asking for for months and the
`third issue we'll talk about here today.
`So from our position, your Honor, given these
`clear contractual rights, given the clear contractual
`right to acquire LG CNS to cooperate, it's our position
`that LG should exercise those rights, and that LG does not
`have any excuse for not telling LG CNS to stop interfering
`with our subpoenas to the CDNs, and not requesting and
`obtaining the documents that we're looking for. And
`there's one other category of information aside from
`these, your Honor.
`To date, LG, the defendants, have not produced
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
`
`
`
`Case 1:20-cv-00034-ADA Document 127 Filed 01/27/21 Page 20 of 37
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`their master service agreement with LG CNS, again, their
`position that these are all LG CNS doing these actions,
`they concede, I think -- but maybe
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