Case 6:21-cv-00898-ADA Document 222 Filed 10/11/23 Page 1 of 12
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`IN THE UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`ALMONDNET, INC.,
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`Plaintiff,
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`AMAZON.COM, INC., AMAZON.COM
`SERVICES LLC, and AMAZON WEB
`SERVICES, INC.,
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`v.
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`Civil Action No. 6:21-cv-00898-ADA
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`JURY TRIAL DEMANDED
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`Defendants.
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`DEFENDANTS’ REPLY IN SUPPORT OF MOTIONS IN LIMINE
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`Case 6:21-cv-00898-ADA Document 222 Filed 10/11/23 Page 2 of 12
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`TABLE OF CONTENTS
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`AMAZON’S MIL NO. 2: REFERENCE TO PARTIES DISMISSED FROM THIS
`ACTION OR OTHER ENTITIES CONTROLLED BY ALMONDNET ......................... 1
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`AMAZON’S MIL NO. 3: REFERENCES TO THE ASSERTION OF ATTORNEY-
`CLIENT PRIVILEGE ......................................................................................................... 3
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`I.
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`II.
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`i
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`Case 6:21-cv-00898-ADA Document 222 Filed 10/11/23 Page 3 of 12
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`TABLE OF AUTHORITIES
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`Page(s)
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`CASES
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`Geders v. U.S.,
`425 U.S. 80 (1976) .....................................................................................................................4
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`Hof as Tr. of Est. of FoodServiceWarehouse.Com v. LaPorte,
`No. CV 19-10696, 2020 WL 5594126 (E.D. La. Sept. 18, 2020) .............................................4
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`Moore v. State Farm Mut. Auto. Ins. Co.,
`520 F. Supp. 2d 815 (E.D. La. 2007) .........................................................................................4
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`Potashnick v. Port City Const. Co.,
`609 F.2d 1101 (5th Cir. 1980) ...................................................................................................4
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`VirnetX Inc. v. Apple Inc.,
`No. 6:12-CV-00855-RWS, 2020 WL 11647826 (E.D. Tex. Sept. 1, 2020) ..........................2, 4
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`STATUTES AND RULES
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`Fed. R. Evid. 403 .........................................................................................................................1, 3
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`ii
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`Case 6:21-cv-00898-ADA Document 222 Filed 10/11/23 Page 4 of 12
`Case 6:21-cv-00898-ADA Document 222 Filed 10/11/23 Page 4 of 12
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`TABLE OF EXHIBITS
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`Exhibits to the Declaration of Christopher L. Larson in Support of Defendants’ Reply in
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`support of its Motions Jn Limine are cited herein as noted in the table below:
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`(“Bakewell Rep.”) Additional excerpts from the Opening Expert Report of Christopher Bakewell
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`ill
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`I.
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`Case 6:21-cv-00898-ADA Document 222 Filed 10/11/23 Page 5 of 12
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`AMAZON’S MIL NO. 2: REFERENCE TO PARTIES DISMISSED FROM THIS
`ACTION OR OTHER ENTITIES CONTROLLED BY ALMONDNET1
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`AlmondNet confirms in its opposition that it will tell the jury that, contrary to the record
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`evidence, AlmondNet operates through Intent IQ and Datonics, and is not solely a patent licensing
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`entity. (Opp. at 3 (stating that
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`Neither entity owns any of the currently asserted patents, and
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`).) But neither Intent IQ nor Datonics are parties to this case.
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`. (See Mot. at 3-4, citing Plaintiff’s Fourth Suppl. ROG Resp.
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`at 6, 8.) Thus, the only purpose of presenting fact testimony regarding the operations of Intent IQ
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`and Datonics is an improper one: to confuse the jury by concealing the true nature of AlmondNet’s
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`business and suggesting that the hypothetical negotiation would have involved these non-parties.
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`Fed. R. Evid. 403. None of AlmondNet’s arguments changes this.
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`First, AlmondNet argues that Amazon’s motion would prevent the parties’ damages
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`experts from analyzing AlmondNet’s patent license agreements with third parties (e.g.,
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`), because
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` to those agreements. (Opp. at
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`3-4.) This is incorrect: Amazon does not seek to preclude discussion of the mere existence of
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`these entities for purposes of damages. (See Mot. at 4.) Thus, if the Court were to grant this
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`motion, neither Mr. Bergman nor Mr. Bakewell would be precluded from describing the details of
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`the agreements and their structure in support of their opinions. To be clear, Amazon seeks only to
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`preclude AlmondNet from introducing testimony and evidence that have nothing to do with the
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`1 The parties have reached an agreement regarding the scope of AlmondNet’s trial presentation
`that resolves Amazon’s Motions in Limine Nos. 1 (References to Amazon’s Overall Advertising
`Revenue) and 4 (References to Enhanced Damages or Exceptional Case). Disputes remain as to
`Amazon’s MIL Nos. 2 and 3, which Amazon addresses in this brief.
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`1
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`Case 6:21-cv-00898-ADA Document 222 Filed 10/11/23 Page 6 of 12
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`asserted patents,
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`such as describing urelevant and non-practicing products, customers,
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`development, operations, or financials of these entities. Neither expert disclosed any opinion that
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`relies on these details, whether to argue for or against the comparability of these licenses, or
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`otherwise.
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`Second, AlmondNet argues that the motion should be denied because it would purportedly
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`preclude its damages expert Mr. Bergman fromPs
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`a. (Opp. at 4.) This is also untrue. These agreements are irrelevant and Mr. Bergman’s
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`reliance on them is improperfor the reasons set forth in Amazon’s Daubert motion to exclude.”
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`(Dkt. 126 at 12-14.) But Amazon agreesthat if the Court declines to exclude the testimony under
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`Dauber, Ms. Bergman conpress
`ee Regardless, Mr. Bergman’s narrowreliance on certain
`Po should not give AlmondNet’s counsel and witnesses the unfettered right to
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`offer confusing testimony and argumentto the jury that Intent IQ and Datonics’ operations are in
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`fact operations ofAlmondNetand relevant to the hypothetical negotiation.*
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`2 As explained in Amazon’s Daubert motion,the
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`.
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`(Dkt. 126 at 12-14.)
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`Indeed
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`are irrelevant to the
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`asserted patents, because AlmondNet admits that Intent IQ
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`and failed to provide any evidence that the agreements are technically comparable to the asserted
`patents.
`(/d.) The agreements are also irrelevant because they were executed years after the
`hypothetical negotiation.
`(Mot. at 5-6); cf VirnetXInc. v. Apple Inc., No. 6:12-CV-00855-RWS,
`2020 WL 11647826, at *5 (E.D. Tex. Sept. 1, 2020) (noting so-called “book-of-wisdom”doctrine
`may permit consideration of the accused infringer’s sales after the hypothetical negotiation).
`3
`Contrary
`to AlmondNet’s assertion, Amazon’s damages expert Mr. Bakewell does notrel
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`to support his affirmative damages opinions;|
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`. (See Ex. F ¥¥ 509-
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`on the
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`524; Dkt. 126 at 12-14.)
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`Case 6:21-cv-00898-ADA Document 222 Filed 10/11/23 Page 7 of 12
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`Third, AlmondNet contends that excluding evidence about Intent IQ and Datonics’
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`business will prejudice AlmondNet by portraying AlmondNet’s research and licensing business as
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`“not a good faith line of business.” (Opp. at 5.) This contention lacks merit. Amazon does not
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`intend to make any suggestion to the jury that patent licensing is a bad-faith business practice, and
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`the Court has already issued an in limine order precluding “evidence, testimony, or argument
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`referring to any other person or entity as . . . ‘dishonest,’ or using any other pejorative term” or
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`reference to “disparaging” terms such as “patent assertion entity” or “patent troll.” (Dkt. 104
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`(Order on Motions in Limine) at 2-3.)
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`The Court should therefore grant Amazon’s Motion and preclude AlmondNet from
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`presenting irrelevant and confusing testimony and argument to the jury regarding the operations
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`of non-parties Intent IQ and Datonics.
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`II.
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`AMAZON’S MIL NO. 3: REFERENCES TO THE ASSERTION OF ATTORNEY-
`CLIENT PRIVILEGE
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`AlmondNet confirms in its opposition that it will focus its cross-examination of Amazon’s
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`prior art fact witness Daniel Jaye on a collateral issue—a privilege instruction offered by his
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`counsel as well as any legal advice provided during breaks in a deposition—that has nothing to do
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`with the merits of Amazon’s invalidity defense. Permitting AlmondNet to pursue such a line of
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`questioning—when the Court’s OGP specifically allows conversations with witnesses during
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`depositions and precludes examination of these privileged discussions—would unduly prejudice
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`Amazon by improperly suggesting that Mr. Jaye’s testimony was untruthful merely because it
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`occurred after a break in a deposition. This would not only confuse the jury but would be a waste
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`of valuable court time. Fed. R. Evid. 403.
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`AlmondNet argues it should be allowed to litigate this peripheral issue before the jury
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`because, it contends, no privilege attaches to communications between Amazon’s counsel and Mr.
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`3
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`Jaye. But there is no dispute that Fenwick & West is also counsel to Mr. Jaye, and the Court’s
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`OGP explicitly provides that “[c]ounsel may confer with witnesses during breaks in a deposition
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`without waiving any otherwise applicable privilege.” (OGP Version 4.3 at 9 (emphasis added).)
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`AlmondNet’s argument that it can simply disregard the Court’s standing order because it disagrees
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`with the substance of Mr. Jaye’s testimony is untenable.
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`The cases cited by AlmondNet only confirm that cross-examination as to the substance of
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`fact testimony, and not a side inquiry into legal advice that may or may not have been provided by
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`counsel, is the best way to address concerns regarding the veracity of Mr. Jaye’s testimony. The
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`Supreme Court case AlmondNet cites, Geders v. U.S., 425 U.S. 80, 89 (1976), holds that
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`precluding an attorney and client from conferring during a recess violates the right to assistance of
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`counsel—an issue that is irrelevant to this patent case. Id. at 91. Regardless, the Court’s OGP
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`only reinforces the general principle that clients should be able to receive legal advice from their
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`counsel during deposition. AlmondNet should not be permitted to argue an adverse inference to
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`the jury. See also, e.g., Potashnick v. Port City Const. Co., 609 F.2d 1101, 1118 (5th Cir. 1980)
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`(“prohibiting a litigant from consulting with his attorney during breaks and recesses in the litigant’s
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`testimony impinges upon” the right to retain counsel).4
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`AlmondNet’s argument that Amazon’s explanation of Mr. Jaye’s testimony amounts to a
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`privilege waiver borders on frivolous. Amazon did not disclose the contents of any attorney-client
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`4 The Moore case cited by AlmondNet is also inapplicable. (Opp. at 6, citing Moore v. State
`Farm Mut. Auto. Ins. Co., 520 F. Supp. 2d 815, 826 (E.D. La. 2007).) In Moore, plaintiffs sought
`to strike testimony that was allegedly influenced and coached by defendant’s counsel after he
`stopped the witness’ deposition. Id. The Court declined to strike the witness’ testimony and stated
`that plaintiffs could cross-examine the witness; it did not allow the plaintiffs to inquire about the
`content of communications between the witness and defense counsel. Id.; See also Hof as Tr. of
`Est. of FoodServiceWarehouse.Com v. LaPorte, No. CV 19-10696, 2020 WL 5594126, at *5 (E.D.
`La. Sept. 18, 2020) (counsel can “question the witnesses about matters that may have affected or
`changed their testimony, but this does not mean it can ask about privileged communications”).
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`4
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`communications in its motion. Indeed, it is clear from the transcript itself that Mr. Jaye
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`answering about
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`” (Ex. C, Jaye Tr. at 63:2-16.) On redirect, Mr. Jaye clarified that
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`.” Instead of
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`. (Id. at 93:24-94:5.) Mr. Jaye then reiterated this point during
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`AlmondNet counsel’s re-cross-examination. (Id. at 98:9-23
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`.”).) No authority suggests
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`Amazon’s straightforward description of this testimony amounts to a waiver.
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`The Court should preclude AlmondNet from turning the trial into a sideshow focusing on
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`purported coaching and privilege instructions, which has no relevance to any of the issues the jury
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`will decide in this case.
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`Case 6:21-cv-00898-ADA Document 222 Filed 10/11/23 Page 10 of 12
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`Dated: October 4, 2023
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`Of Counsel:
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`Deron R. Dacus (TX Bar #00790553)
`ddacus@dacusfirm.com
`THE DACUS FIRM, P.C.
`821 ESE Loop 323, Suite 430
`Tyler, TX 75701
`Tel: (903) 705-1117
`Fax: (903) 581-2543
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`Respectfully submitted,
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`By: /s/ Christopher L. Larson
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`J. David Hadden (CA Bar No. 176148)
`Email: dhadden@fenwick.com
`Saina S. Shamilov (CA Bar No. 215636)
`Email: sshamilov@fenwick.com
`Ravi R. Ranganath (CA Bar No. 272981)
`Email: rranganath@fenwick.com
`Johnson K. Kuncheria (TX Bar No. 24070092)
`Email: jkuncheria@fenwick.com
`Johnathan L. Chai (CA Bar No. 339315)
`Email: jchai@fenwick.com
`FENWICK & WEST LLP
`801 California Street
`Mountain View, CA 94041
`Tel: (650) 988-8500
`Fax: (650) 938-5200
`
`Todd R. Gregorian (CA Bar No. 236096)
`Email: tgregorian@fenwick.com
`Eric B. Young, (CA Bar No. 318754)
`Email: eyoung@fenwick.com
`Dargaye Churnet (Admitted Pro Hac Vice)
`Email: dchurnet@fenwick.com
`Christopher L. Larson (CA Bar No. 308247)
`Email: clarson@fenwick.com
`FENWICK & WEST LLP
`555 California Street, 12th Floor
`San Francisco, CA 94104
`Tel: (415) 875-2300
`
`Jeffrey A. Ware (WA Bar No. 43779)
`Email: jware@fenwick.com
`FENWICK & WEST LLP
`401 Union Street, 5th Floor
`Seattle, WA 98101
`Tel: (206) 389-4510
`
`James S. Trainor (NY Bar No. 3995826)
`Email: jtrainor@fenwick.com
`Jessica Lin (NY Bar No. 5035860)
`Email: jessica.lin@fenwick.com
`Eric Menist (NY Bar No. 5721568)
`Email: emenist@fenwick.com
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`Case 6:21-cv-00898-ADA Document 222 Filed 10/11/23 Page 11 of 12
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`FENWICK & WEST LLP
`902 Broadway, 18th Floor
`New York, NY 10010
`Tel: (212) 921-2001
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`Counsel for Defendants
`AMAZON.COM, INC., AMAZON.COM SERVICES
`LLC, and AMAZON WEB SERVICES, INC.
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`Case 6:21-cv-00898-ADA Document 222 Filed 10/11/23 Page 12 of 12
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`CERTIFICATE OF SERVICE
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`I hereby certify that all counsel of record who are deemed to have consented to electronic
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`service are being served with a true and correct copy of this document on October 4, 2023, via the
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`Court’s CM/ECF system per Local Rule CV 5(a)(3). Additionally, this document and the
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`attachments thereto were served via email on all counsel of record.
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`/s/ Christopher L. Larson
`Christopher L. Larson
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