Case 6:20-cv-00636-ADA Document 223 Filed 09/19/22 Page 1 of 13
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`DEMARAY LLC,
`
` PLAINTIFF,
`
`v.
`
`INTEL CORPORATION,
`
` DEFENDANT.
`
`DEMARAY LLC,
`
` PLAINTIFF,
`
`v.
`
`SAMSUNG ELECTRONICS CO., LTD (A
`KOREAN COMPANY), SAMSUNG
`ELECTRONICS AMERICA, INC.,
`SAMSUNG SEMICONDUCTOR, INC., and
`SAMSUNG AUSTIN SEMICONDUCTOR,
`LLC,
`
` DEFENDANTS.
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
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`§
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`§
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`CIVIL ACTION NO. 6:20-CV-00634
`JUDGE ALBRIGHT
`
`PUBLIC VERSION
`
`CIVIL ACTION NO. 6:20-CV-00636
`JUDGE ALBRIGHT
`
`PUBLIC VERSION
`
`DEMARAY LLC'S MOTION TO MODIFY THE SCHEDULING ORDER
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`11137575
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`DEMARAY'S MOTION TO MODIFY THE CASE SCHEDULE
`(Case No 6:20-cv-00634-ADA)
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`

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`Case 6:20-cv-00636-ADA Document 223 Filed 09/19/22 Page 2 of 13
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`I.
`
`INTRODUCTION AND BACKGROUND
`Plaintiff Demaray LLC respectfully brings this motion to amend the case schedule to
`allow additional time to complete significant remaining fact discovery and prevent Defendants
`from continuing to try to “run out the clock.” The four major firms and local counsel
`representing Defendants Intel and Samsung are working together under the veil of a “common
`interest privilege” and are obstructing timely access to the facts that would allow a fair trial. Fact
`discovery is currently set to close on October 26, 2022. Demaray requests that the Court extend
`this period at least six weeks so Demaray can obtain the information it long has been seeking to
`prepare its case.
`Defendants have delayed at every turn to avoid providing important discovery. As just
`one example, Samsung has thus far produced two financial documents. Defendants also have not
`committed to any deposition dates, creating a situation when depositions will need to be taken
`almost continuously through the end of discovery. When Demaray has sought to resolve and
`avoid disputes in recent months, Defendants are nearly always “unavailable” to confer regarding
`important issues until several days—even weeks—after the Court's deadline for such meetings.
`When those calls occur, Defendants are repeatedly “unable” to meaningfully address their failure
`to provide basic discovery or provide solid assurances on when information will be produced.
`Even when briefing disputed issues, Defendants wait to provide their portions until the eleventh
`hour or (again) several days thereafter. The combined effect of these delays is that the current
`discovery deadline is prejudicial to Demaray.
`
`
`
`
`
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` But rather than work efficiently through discovery, Defendants have leveraged the
`complexity of the case, the size of their institutional clients and their litigation teams, and nearly
`every delay tactic in the book, to run out the clock. To help remedy these issues, Demaray
`respectfully requests that the Court extend the close of fact discovery to December 19, and
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`DEMARAY'S MOTION TO MODIFY THE CASE SCHEDULE
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`Case 6:20-cv-00636-ADA Document 223 Filed 09/19/22 Page 3 of 13
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`briefly extend other related deadlines as set forth in Exhibit A to the Weber Declaration attached
`hereto ("Decl."). All other deadlines, including the May 8, 2023 trial date, can remain
`unchanged. While Demaray has endeavored to find other alternatives—such as a new trial
`date—Defendants claim they are unavailable for trial until mid-October 2023, during a period in
`which Demaray’s trial team have multiple trial conflicts. Accordingly, Demaray requests the
`next best available option that maintains the current trial date and will hopefully allow Demaray
`to access some of the most relevant documents and information before the close of discovery.
`II.
`APPLICABLE LEGAL STANDARD
`Scheduling orders may be modified “for good cause and with the judge's consent.” Fed.
`R. Civ. P. 16(b)(4).1 Courts have “exceedingly wide” discretion regarding scheduling. Versai
`Mgmt. Corp. v. Clarendon Am. Ins. Co., 597 F.3d 729, 740 (5th Cir. 2010).
`III. GOOD CAUSE EXISTS TO AMEND THE CASE SCHEDULE
`Defendants’ near-categorical delays and obstruction continue to prejudice Demaray’s
`efforts to prepare for trial, necessitating a scheduling adjustment.
`A.
`Defendants’ Delay in Providing Discovery Warrants an Extension.
`A few examples of the pattern of conduct warranting a brief discovery extension are
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`below.
`
`Defendants’ failure to identify responsive chambers. As set forth in the two discovery
`disputes currently pending before the Court, Defendants have repeatedly failed to provide timely
`and accurate disclosures of the chambers
`
` Recent discovery revealed that Defendants should have identified, for example,
` chambers among these products, but Defendants withheld that information.
`While Defendants purported to identify the
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`
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`1 To show good cause, the moving party must show “that the deadlines cannot reasonably
`be met despite the diligence of the party needing the extension,” and four factors inform this
`inquiry: “(1) the party's explanation; (2) the importance of the requested relief; (3) potential
`prejudice in granting the relief; and (4) the availability of a continuance to cure such prejudice.”
`Escalante v. Creekside Logistics, LLC, No. 5:18-CV-116-OLG, 2019 WL 9135758, at *2 (W.D.
`Tex. Feb. 12, 2019).
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` neither Defendant identified any
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` chambers. Instead, Defendants
`
`represented
`Demaray rightfully thought it could rely on these responses in pursuing discovery and detailing
`its final infringement contentions. Based on these representations, Demaray did not detail
` in its final contentions, but expressly reserved the right to do so if
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`. Decl. ¶¶ 3-4.
`Recent discovery—which should have been provided more than a year ago—revealed
`that Defendants do appear to
` and that contrary to their
`representations, those reactors
`
` In particular, while reviewing newly-provided Samsung discovery on
`August 17, Demaray saw that
`
`
`
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`
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` Id.
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` but Defendants
`¶¶ 5-6. Demaray immediately sought discovery on
`refused. Demaray was forced to move to compel, further delaying access to this basic discovery
`into accused chambers.
` delays. When the parties previously agreed to amend the
`Samsung’s
`case schedule, Samsung never once revealed its position that discovery already requested by
`Demaray
` Instead, two weeks after the Court entered the
`third amended scheduling order on May 6, 2022 (Intel Dkt. 169; Samsung Dkt. 186), Samsung
`revealed to Demaray
`
`
` Decl. ¶ 7.
`Nearly two months later on July 1, Demaray served a discovery dispute submission to
`access the still outstanding discovery. Samsung responded that
`
` So that Demaray could understand what had happened,
`the timelines involved, and whether it would need to ask Samsung to broaden its
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` to include additional materials, on July 13, Demaray asked Samsung
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` Samsung
`never answered these questions and so Demaray sent another letter that repeated these questions
`on August 11. The next day, Samsung responded that
` but
`would not answer questions about
` despite Demaray's repeated follow up. Id.
`¶ 8.
`
` to delay providing the requested discovery
`Samsung has used this
`for months (until mid-August), and it still has not identified the
`
`
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`
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` If Samsung had revealed this massive delay (of which only it was aware) at the time
`of the last scheduling extension, Demaray would never have agreed to the current schedule.
`Intel’s delayed witness-related information. In an effort to aid and narrow Intel’s
`search for certain “persons most knowledgeable” so that Demaray could notice depositions and
`seek ESI, on July 13, 2022, Demaray identified categories for which Intel had still not identified
`persons most knowledgeable in response to an interrogatory on the subject. Intel agreed to
`identify those persons the following week, but did not. On July 27, Demaray conferred with
`Intel and it (again) agreed to respond to two interrogatories based upon guidance provided—this
`time, by August 5. Intel did not supplement until August 9, but even then its responses
`
` Demaray
`was thus forced to move to compel and served its portion of a discovery submission on August
`14. Decl. ¶¶ 9-12.
`Intel’s first portion of the discovery submission on this topic
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`
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`. But by Intel’s third round of edits, on August 24, Intel revised its submission to assert
`
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` After more edits and another interrogatory supplement, on September 2, Intel
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`changed its submission to assert that
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` Id. ¶ 13. Intel thus used the discovery submission
`process to delay identifying persons most knowledgeable about the accused chambers for
`months, delaying deposition discovery and ESI of those witnesses for the same period.
`Defendants’ withholding of prior art discovery. On July 15, 2022, Demaray asked
`Defendants to confer about what invalidity contentions, if any, remained following the PTAB’s
`Final Written Decisions rejecting Defendants’ IPR petitions concerning the Demaray patents.
`Defendants refused to substantively respond for nearly three weeks. When Defendants finally
`did respond, they asserted that they would not discuss the issues raised in Demaray’s letter until
`September 28, 2022, which was the parties’ deadline to discuss significantly narrowing the
`number of prior art references at issue. Even after conferring with Demaray, Defendants stuck to
`this position. Accordingly, Demaray was forced to prepare and serve yet another discovery
`submission on August 14. Decl. ¶ 13.
`On the day Defendants’ inserts were due, Defendants agreed to identify the references
`upon which they were no longer relying in view of IPR estoppel, and to investigate and provide a
`date certain for producing all documents in their possession, custody, and control on any alleged
`system art on which Defendants would proceed. After repeated follow-up and service of a
`second discovery submission on this issue, on August 26, Defendants asserted that they would
`provide documents related to prior-art systems “in approximately six weeks”—i.e., on October 7,
`less than three weeks before the current close of discovery. Demaray informed Defendants that
`their delay in producing such information would prejudice its ability to conduct discovery on
`those systems and that Demaray reserved all rights, including seeking an extension of fact
`discovery. Nevertheless, Defendants continue to withhold production of these foundational
`materials—which should have been produced well over a year ago—until less than three weeks
`before the close of discovery, when there will obviously be inadequate time for Demaray to
`review documents and obtain necessary follow up documentation and depositions. Id. ¶ 14.
`Samsung’s refusal to provide the agreed-upon inspection. In early August, Samsung
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` and
`committed to arranging Demaray’s requested inspection of the
` from the
` reactor, pursuant to the Court’s order permitting the
`inspection to proceed. Samsung Dkt. 214. After repeated correspondence and attempts to
`organize the inspection, however, Samsung claimed
`
` had to be physically present for any inspection. Worse yet,
`
`Samsung asserted that
`
`
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` Thereafter, Demaray proposed that Samsung get documents on the
` but
`no such documents have been produced. Decl. ¶ 15. Samsung seeks to further capitalize on its
` demand by refusing to adjust the discovery deadline, so that Demaray will not
`have enough time to obtain the same information in some other manner.
`Delays coordinated with Defendants’ suppliers. Productions from Defendants’ own
`suppliers—with whom Defendants also assert a common interest privilege, blocking any
`inquiries into their coordination—have also been consistently delayed.
` from Defendants’
`As one example, Demaray sought to order certain
`supplier,
` on April 25, 2022. After following up for weeks,
`Defendants finally provided Demaray with the information necessary to actually place the order.
`Demaray provided that information and requested a formal invoice. Thereafter, despite agreeing
`to pay many tens of thousands of dollars for this equipment, Demaray pressed Defendants for
`weeks but could not get any answer as to whether (and when) the order had actually been placed.
`Defendants eventually referred Demaray to
` and only after repeated follow-up with
`
`counsel did Demaray receive a June 20 sales invoice on July 5, and Demaray learned that the
`confirmation regarding shipment of the supplies had not been sent to
` until July 6. On July
`22,
` also informed Demaray
`
`
` October 10, 2022 and January 25, 2023,
`respectively. Decl. ¶ 16. In light of these delays, Demaray should be afforded sufficient time to
`receive and inspect at least one of the power supplies that it incurred considerable expense to
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`order. Even if one of the supplies arrives on time by October 10 as anticipated, Demaray will
`still need time to inspect it and pursue follow-up discovery with Defendants and third parties.
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`obtained from
`
` requesting
` 2022-04-01 Intel Tr. at 17:1-7. Thereafter, Intel served a subpoena on
` that it
` On May 2, Intel produced
` yet these documents were entirely insufficient to detail key features at issue
` Demaray was
` Despite
`thus forced to
`Demaray’s motion and this Court’s encouragement for Defendants to work with their suppliers
`to produce requested information,
` did not produce a
` to Demaray
`until September 1, 2022, following a Colorado hearing in which it finally agreed to Demaray’s
`request for that information. Decl ¶ 17. This initial production is for only
`
` Additional
`Intel’s refusal to proceed with noticed Rule 30(b)(1) depositions. During the July 29,
`2022 hearing before the Court, Intel argued that
`
`
`
`
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` Intel Dkt.
`187, 14:11-13 (2022-07-29 Intel Tr.). That day, Demaray noticed depositions of four Intel
`employees believed to be able to provide some of the missing information. Demaray promptly
`followed up with Intel and requested to confer about the depositions. But not a single one of
`these depositions occurred. Instead, by e-mail, Intel refused to proceed until Demaray served a
`Rule 30(b)(6) notice and explained its need for seeking two of the depositions. Decl. ¶ 18.
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`As detailed in Demaray’s opposition (Intel Dkt. 212) to Intel’s motion for a protective
`order (id. 195) with respect to these 30(b)(1) depositions—which Intel later withdrew—Rule
`30(b)(1) gives Demaray the right to seek depositions of individuals, and it does not condition that
`right on the service of any Rule 30(b)(6) notice, nor do any of the Rules entitle Intel to block
`depositions with claims that Demaray has not explained to Intel's satisfaction why Demaray is
`choosing to depose certain individuals. Nonetheless, to move forward without further delay,
`Demaray did serve the 30(b)(6) notice. Yet, even as of the date of this motion, Intel still refuses
`to schedule any of the 30(b)(1) depositions Demaray requested as far back as July 29, or any of
`the other 30(b)(1) depositions Demaray has requested since then. Decl. ¶ 18. As recently as
`September 6, Intel refused to provide its witness availability and offered to give an “update” the
`following week on times and whether it would dispute the “relevance” of any witnesses. Indeed,
`as of September 12, neither Intel nor Samsung has agreed to a single deposition date for any of
`the 26 deposition notices served (10 notices to Intel and 16 notices to Samsung).
`Withholding of key discovery. In the last few weeks alone, Demaray has also been
`forced to serve multiple draft discovery submissions on Defendants due to their failure to provide
`responsive documents, followed by their refusals to confer with Demaray in a timely manner. In
`many instances, and although discovery is currently scheduled to close in six weeks, Demaray
`still does not have the requested discovery or any assurance of when it can be expected.
`For example, on August 23, Demaray contacted Intel to request documents “sufficient to
`show” the
` that Intel performed in connection with the accused
`
`chambers and sufficient information to determine whether those activities involved actions in the
`United States. Decl. ¶ 19. Demaray asked Intel to confer, and after Intel ignored Demaray’s two
`requests for a conference, Demaray was forced to prepare and serve a discovery dispute
`submission just to get a response. The day after Demaray served its portion of the discovery
`dispute, Intel provided its availability to confer. During the parties’ conference on September 1,
`a week-and-a-half after Demaray first raised the
` issue in written
`correspondence, Intel was “not prepared” to say whether it would provide the information
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`requested and said it would not be able to get back to Demaray until September 9 as to whether it
`could even agree to production. Demaray asked Intel either to provide its position on production
`or its inserts to the discovery dispute by September 6. Rather than provide its position on
`whether it would agree to produce the requested information, Intel served its portion of the
`discovery dispute on that day. Three days later, and although more than two weeks had passed
`since Demaray's initial correspondence,
`
` and without
`providing any information with respect to the categories of responsive documents or the nature
`of Intel's purported burden, Intel stated it would search for and produce certain documents "to the
`extent such documents exist and can be located after a reasonable search." Id. ¶ 20. With only
`six weeks of discovery remaining, remarkably, Intel still did not provide a date certain by which
`it would produce these documents (to the extent it does not withhold on "burden").
`As another example, Samsung has produced a grand total of
`response to Demaray’s July 7, 2022 request for basic financial information, and refuses to
`commit to a timeframe for providing the information needed, other than stating it "hopes" to
`begin production by September 16 and will produce on a rolling basis thereafter. Decl. ¶ 21.
`Demaray requested key and fundamental documents such as purchase orders for the accused
`reactors and documents showing sales, revenues, profits, and costs for the accused products.
`These materials are highly relevant, readily accessible, and should have been produced long ago.
`Refusal to produce discovery on
` As yet another example of
`Defendants’ gamesmanship, Demaray wrote to Intel on August 17 to request certain discovery
`about Intel’s
`—in particular, information about its use of the accused chambers
`and processes in the
`.
`
` but appears to have excluded them from discovery in the
`case. Intel responded that it would respond in “due course,” but after two weeks without any
`substantive response and after Intel again refused to meet and confer per Demaray’s request,
`Demaray was forced to serve a discovery submission. Intel has made clear in its response to that
`
` in
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`submission that it is unwilling to produce that information. Demaray sought similar information
`from Samsung,
` While
`Samsung has not produced the requested information either, it finally agreed to do so but has still
`not provided any timeframe for that production. Decl. ¶ 22. Here too, Demaray is running out of
`time to fight for, receive, review, and follow-up regarding this
`
`B.
`Defendants will suffer no prejudice from the requested relief.
`Scheduling accommodations of the sort requested are the only fair remedy short of
`adverse inferences for Defendants’ pattern of delay. During the parties’ meet and confer,
`Defendants did not oppose modification of the scheduling order but repeatedly sought to move
`the trial to October 2023 or later, in an apparent attempt to move this case in line with or behind
`Applied Material’s declaratory judgment action in the Northern District of California.
`(Defendants rejected Demaray’s proposal to move the trial to July, August, or the first week of
`September 2023; earlier, they had claimed that their witnesses were “unavailable” then, and now
`they claim that lead trial counsel across their multitude of major law firms have conflicts.) In
`response to Demaray’s last resort—the extension of the discovery deadlines requested herein—
`Defendants asserted that this extension provided too little time for the parties to complete their
`expert reports. But Defendants have multiple firms and large teams at their disposal—26
`attorneys have entered appearances and even more attorneys handle meet and confer calls and
`substantive correspondence—and regardless, any purported “harm” from having less time to
`prepare expert reports will fall more heavily upon Demaray, who has even less access to
`proprietary financial information and other details about the accused
` chambers, and thus
`even less time to prepare its relevant expert reports. Moreover, any “harm” alleged by
`Defendants is the result of their improper approach to discovery, for which they should not be
`rewarded and as a result of which Demaray’s trial preparation efforts should not be penalized.
`IV. CONCLUSION
`Demaray respectfully submits that it has shown good cause for a brief extension of
`discovery and other related deadlines, and that this requested relief should be granted.
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`Case 6:20-cv-00636-ADA Document 223 Filed 09/19/22 Page 12 of 13
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`Dated: September 12, 2022
`
`/s/ C. Maclain Wells
` By: C. Maclain Wells
`Richard D. Milvenan
`State Bar No. 14171800
`Travis C. Barton
`State Bar No. 00790276
`MCGINNIS LOCHRIDGE LLP
`1111 W. 6th Street, Suite 400
`Austin, Texas 78703
`Telephone: (512) 495-6000
`Facsimile: (512) 495-6093
`rmilvenan@mcginnislaw.com
`tcbarton@mcginnislaw.com
`
`Morgan Chu
`Benjamin W. Hattenbach
`Annita Zhong
`Samuel K. Lu
`Olivia Weber
`IRELL & MANELLA LLP
`1800 Avenue of the Stars, Suite 900
`Los Angeles, California 90067
`Telephone: (310) 277-1010
`Facsimile: (310) 203-7199
`mchu@irell.com
`bhattenbach@irell.com
`azhong@irell.com
`slu@irell.com
`oweber@irell.com
`
`C. Maclain Wells
`FOLIO LAW GROUP PLLC
`C. Maclain Wells (221609)
`2376 Pacific Ave.
`San Francisco, CA 94115
`(415) 562-8632
`maclain@foliolaw.com
`
`Attorneys for Demaray LLC 
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`Case 6:20-cv-00636-ADA Document 223 Filed 09/19/22 Page 13 of 13
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`CERTIFICATE OF SERVICE
`A true and correct copy of the foregoing instrument and its attachments were served
`electronically via email upon all counsel of record on this 12th day of September, 2022.
`
`By: /s/ Jeffrey Linxwiler
`Jeffrey Linxwiler
`
`
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`DEMARAY'S MOTION TO MODIFY THE CASE SCHEDULE
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