Case 6:22-cv-01162-ADA Document 105 Filed 06/18/24 Page 1 of 14
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`
`
`
`
`
`
`PARKERV ISION, INC.,
`
`
`Plaintiff,
`
`
`REALTEK SEMICONDUCTOR
`CORP.,
`
`
`v.
`
`Defendant.
`
`§
`§
`§
`§ Civil Action No. 6:22-cv-01162-ADA
`§
`
`§
`
`§
`§
`
`
`
`
`
`JURY TRIAL DEMANDED
`
`§
`§
`§
`
`
`
`
`
`
`
`
`
`PARKERVISION’S OPPOSED MOTION
`TO AMEND THE CASE SCHEDULE AND TRIAL DATE
`
`

`

`Case 6:22-cv-01162-ADA Document 105 Filed 06/18/24 Page 2 of 14
`
`TABLE OF CONTENTS
`
`
`Page
`
`Introduction. ........................................................................................................................ 1
`
`Legal standard. .................................................................................................................... 1
`
`I.
`
`II.
`
`III.
`
`Argument. ........................................................................................................................... 2
`
`A.
`
`B.
`
`C.
`
`Fact discovery should be extended in view of the Court’s recently-ordered
`discovery from Realtek, depositions, and additional discovery issues the parties
`are trying to work through. ..................................................................................... 3
`
`Amending the case schedule is important to the development of the evidence in
`the case and the case’s fair and just resolution. ...................................................... 8
`
`Realtek will not be prejudiced by extending fact discovery and amending the case
`schedule in this case. ............................................................................................... 9
`
`IV.
`
`Conclusion. ....................................................................................................................... 10
`
`
`
`
`
`i
`
`

`

`Case 6:22-cv-01162-ADA Document 105 Filed 06/18/24 Page 3 of 14
`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Cases
`
`Smith W. Tex. Props. V. Allied Prop. & Cas. Ins. Co.,
`2020 U.S. Dist. LEXIS 204023 (W.D. Tex. Apr. 27, 2020) ......................................................1
`
`Springboards To Educ., Inc. v. Houston Indep. Sch. Dist.,
`912 F.3d 805 (5th Cir. 2019) .....................................................................................................1
`
`Statutes
`
`U.S.C. § 16(b)(4) .............................................................................................................................1
`
`
`
`ii
`
`

`

`Case 6:22-cv-01162-ADA Document 105 Filed 06/18/24 Page 4 of 14
`
`I.
`
`Introduction.
`
`Given the scant discovery Realtek has provided to date, just last week, the Court granted
`
`two orders compelling production of Realtek’s technical documents and damages-related
`
`documents. D.I. 103, D.I. 104. Additionally, both parties still need to take depositions and there
`
`are other discovery disputes the parties are working through. Thus, after the Court granted
`
`ParkerVision’s requests, ParkerVision’s counsel met and conferred with Realtek’s counsel to
`
`discuss moving the July 2, 2024 fact discovery deadline and subsequent dates in the schedule.
`
`With fact discovery closing in just two weeks and all of the things that still need to get
`
`done before expert reports, ParkerVision believed that an amendment to the case schedule made
`
`sense. But as it has done at every turn in this case, Realtek dug in and flatly refused, “under any
`
`circumstances,” to extend the fact discovery deadline or discuss an amended case schedule. Once
`
`again, ParkerVision has no choice but to approach the Court for relief.
`
`For the reasons set forth below, good cause exists to amend the schedule in this case and,
`
`therefore, ParkerVision’s motion should be granted.
`
`II.
`
`Legal standard.
`
`The Federal Rules of Civil Procedure provide that a schedule may be modified “for good
`
`cause and with the judge’s consent.” U.S.C. § 16(b)(4). The Fifth Circuit considers four factors
`
`when determining whether there is good cause under Rule 16(b)(4): “(1) the explanation for the
`
`failure to timely [comply with the scheduling order]; (2) the importance of the [modification]; (3)
`
`potential prejudice in allowing the [modification] and (4) the availability of a continuance to cure
`
`such prejudice.” Springboards To Educ., Inc. v. Houston Indep. Sch. Dist., 912 F.3d 805, 819 (5th
`
`Cir. 2019). “A district court has ‘exceedingly wide’ discretion to make decisions regarding
`
`scheduling.” Smith W. Tex. Props. V. Allied Prop. & Cas. Ins. Co., 2020 U.S. Dist. LEXIS
`
`204023, at *3 (W.D. Tex. Apr. 27, 2020).
`
`1
`
`

`

`Case 6:22-cv-01162-ADA Document 105 Filed 06/18/24 Page 5 of 14
`
`III. Argument.
`
`Realtek’s strategy is this case is clear: run out the clock on discovery, move this case
`
`quickly to trial, and have the case decided on a wholly incomplete record.
`
`The state of discovery at this stage in the litigation is like nothing ParkerVision has seen
`
`before. Discovery is about to close in a few weeks and expert reports are due shortly thereafter.
`
`Yet, after months of discovery, Realtek has produced only a few hundred technical documents
`
`and schematics for most, but not all, chips. And ParkerVision has had to fight every step of the
`
`way to even get this slim production.
`
`As the Court is aware, ParkerVision has been diligent in its pursuit of discovery from
`
`Realtek—filing multiple motions to compel and conducting continual meets-and-confers to
`
`extract discovery from Realtek bit by bit. But given Realtek’s repeated obstructionist behavior, it
`
`has taken, and will continue to take considerable additional time (and, unfortunately, Court
`
`orders) to get the discovery from Realtek to where it needs to be. At this point, ParkerVision
`
`simply has no way of taking depositions nor does it even know which witnesses to seek to
`
`depose. And certainly, ParkerVision is in no position to prepare expert reports.
`
`Notably, after the Court recently ordered Realtek to collect, review, and produce relevant
`
`documents, ParkerVision had a meet-and-confer with Realtek. Based on that meeting, it does not
`
`even appear that Realtek is willing to comply with the Court orders—certainly not the spirit and
`
`intent of the orders. As it has done in the past, Realtek is interpreting the Court’s orders in ways
`
`to limit its discovery obligations. Realtek stated that it will simply do the best it can to
`
`collect/produce documents given the time frame to do so.
`
`Realtek simply wants to rush the Court-ordered document collection/production process
`
`and squeeze all depositions in this case to a few days or say “tough luck, too bad, the clock has
`
`run out” for depositions so that it can keep the current case schedule in place. But of course
`
`2
`
`

`

`Case 6:22-cv-01162-ADA Document 105 Filed 06/18/24 Page 6 of 14
`
`Realtek has been taking this approach at the expense of ParkerVision not being provided with all
`
`relevant discovery. Accordingly, good cause exists to modify the schedule. And Realtek cannot
`
`now be heard to complain. The delays in moving forward in this case on the current schedule are
`
`problems of Realtek’s own making. Realtek’s strategy has been to evade and delay and now it
`
`has to live with that.
`
`A.
`
`Fact discovery should be extended in view of the Court’s recently-ordered
`discovery from Realtek, depositions, and additional discovery issues the
`parties are trying to work through.
`
`As to the first prong in the analysis, Realtek’s continued obstructionist conduct and hide-
`
`the-ball discovery tactics are the primary reasons why ParkerVision has not been able to timely
`
`complete fact discovery and comply with the case schedule. Moreover, as mentioned above, the
`
`parties are working to resolve additional discovery issues and must proceed with all fact
`
`depositions.
`
`As the Court may recall, at the inception of this case, Realtek’s strategy was delay.
`
`Realtek refused several attempts at service and challenged the Court’s order granting alternative
`
`service with a mandamus petition to the Federal Circuit, which the appellate court denied. And
`
`then once the case began, Realtek’s strategy continued. After extensive back-and-forth emails
`
`and calls with Realtek’s counsel regarding Realtek’s deficient technical document production
`
`under OGP 4.4, ParkerVision had to approach the Court for an order compelling Realtek to
`
`produce either chip schematics for the twenty-two accused chips in this case or schematics of a
`
`representative chip(s). D.I. 70 (8/30/23 Hrg. Tr.) at 8:22-9:1, 17:21-18:23. But after the hearing,
`
`and ignoring this Court’s order, Realtek would only agree to produce SPICE files—text files that
`
`describe in words certain features of a circuit. Unlike schematics, SPICE files fail to detail the
`
`physical arrangement of the circuit and most component values. SPICE files also require the use
`
`of libraries to properly generate schematics, and only Realtek had these libraries. So after months
`
`3
`
`

`

`Case 6:22-cv-01162-ADA Document 105 Filed 06/18/24 Page 7 of 14
`
`of negotiations, in October 2023, Realtek agreed to use its libraries to generate schematics from
`
`SPICE files.
`
`But when ParkerVision reviewed the schematics (before discovery even began) on
`
`Realtek’s review computer, it became apparent that Realtek was playing a game. What Realtek
`
`provided were wholly incomplete, snippets, illegible, cropped, and/or manipulated to remove
`
`information. Indeed, it appeared that Realtek used ParkerVision’s preliminary contentions as a
`
`roadmap to omit schematic portions and information that Realtek knew were relevant.
`
`ParkerVision then sent Realtek an email identifying the deficiencies. And though Realtek agreed
`
`to supplement, Realtek still would not make the complete set of schematics available on its
`
`review computer. Again, Realtek tried to hide the ball and offered to only load additional
`
`schematic portions to its review computer. But without the complete set of schematics,
`
`ParkerVision did not have a clear picture of the downconverter circuitry and could not tell
`
`Realtek exactly what it needed. ParkerVision was flying blind and Realtek knew that. So on
`
`February 9, 2024, ParkerVision proposed that Realtek provide remote access to Realtek’s
`
`schematics. After repeated follow-up emails and calls extending over the next several weeks, on
`
`March 8, 2024, Realtek rejected ParkerVision’s compromise.1 Thus, despite numerous RFPs and
`
`the Court’s order following the August 30, 2023 hearing, Realtek still had not produced any
`
`technical information other than SPICE files and portions of schematics.
`
`ParkerVision raised this issue with the Court on March 20, 2024. In emails from the
`
`Court that same day, the Court ordered Realtek to provide ParkerVision with sufficient access to
`
`Cadence software such that ParkerVision could create schematics from the relevant source code.
`
`
`1 It should be noted that in ParkerVision’s months-long review of Intel schematics in the
`ParkerVision-Intel litigation, ParkerVision did not encounter any of the continued stonewalling
`and obstructionist tactics that Realtek has employed in this case.
`
`4
`
`

`

`Case 6:22-cv-01162-ADA Document 105 Filed 06/18/24 Page 8 of 14
`
`And the Court explained that if the parties could not agree on how to comply via remote access,
`
`there was nothing preventing ParkerVision from using Realtek’s Cadence software and related
`
`servers in person under Realtek’s supervision. Thus, after more than eight months trying to
`
`obtain this critical discovery, ParkerVision’s counsel and expert then traveled to Taiwan to
`
`review Realtek’s schematics. The next step was to receive and review Realtek’s document
`
`production in response to ParkerVision’s document requests.
`
`Realtek is a sophisticated multi-billion-dollar wireless chip company. And as stated,
`
`ParkerVision has accused more than twenty Realtek wireless chips of infringement. Yet despite
`
`the breadth of the accused products in this case and Realtek agreeing to produce documents in
`
`response to almost all of ParkerVision’s document requests, Realtek produced only a few
`
`hundred documents related to the technology; most of them being high-level data sheets given to
`
`its customers. Realtek produced almost nothing (and in some cases, nothing) related to research,
`
`chip design and development, specifications, testing, presentations, planning, roadmaps,
`
`marketing, competitive analyses, etc.—documents a sophisticated company like Realtek should
`
`have plenty of. Indeed, consistent with the game-playing that ParkerVision has faced, Realtek
`
`produced over 70,000 Chinese-language purchase orders. And after ParkerVision’s complaints
`
`and multiple meet-and-confers, in early May, Realtek stated that it would substantially complete
`
`its production by May 17, 2024. But instead of making a significant production as expected,
`
`Realtek waited weeks only to produce a handful of additional documents, and then inform
`
`ParkerVision that its document production was essentially done.
`
`But as mentioned in ParkerVision’s recent June 6, 2024 discovery-dispute email to the
`
`Court, Realtek’s counsel instructed Realtek to search for documents related to the narrow topic
`
`of down-conversion. It became apparent what had occurred. Like the fox guarding the hen house,
`
`5
`
`

`

`Case 6:22-cv-01162-ADA Document 105 Filed 06/18/24 Page 9 of 14
`
`Realtek’s counsel left it to Realtek to act as the gatekeeper in determining what is relevant to this
`
`case. When questioned about this, Realtek’s counsel repeated its flippant (and irrelevant)
`
`response—the down-conversion feature of the accused chips is simply not important to Realtek.
`
`This, however, does not excuse the lack of production or explain why a leading worldwide chip
`
`company has almost no documents related to its accused chips. Realtek has now been ordered to
`
`thoroughly investigate and produce documents relating to its research, chip design and
`
`development, specifications, testing, presentations, planning, roadmaps, marketing, competitive
`
`analyses of the accused chips. D.I. 103.
`
`ParkerVision also had to approach the Court on June 6, 2024 with a second discovery-
`
`dispute email, which was directed to Realtek’s production of distributor agreements and
`
`distributor reports. Realtek had produced approximately seven distributor agreements. Each of
`
`those distributor agreements requires the distributor to provide Realtek with information and
`
`reports at weekly/monthly intervals, including (i) the quantities of Realtek chips sold, (ii)
`
`distributor customer information (i.e., to whom Realtek’s distributors sell chips), (iii) the identity
`
`of third-party products incorporating a Realtek chip, (v) resale price, and (vi) customers’ down-
`
`stream distribution and sales of third-party products incorporating a Realtek chip. The reporting
`
`information also includes market trends, projected demand, sales plans, customer lists, and the
`
`status of new-product promotion. And the Realtek agreements indicate that Realtek designates
`
`third-party distributors to focus their sales and/or importation operations exclusively on select
`
`geographic locations, including the U.S.
`
`ParkerVision pointed out to the Court that Realtek previously had no objection to
`
`producing its distributor contracts. But once ParkerVision requested the underlying distributor
`
`reports and exchanges of information that account for accused Realtek chips imported and/or
`
`6
`
`

`

`Case 6:22-cv-01162-ADA Document 105 Filed 06/18/24 Page 10 of 14
`
`sold into the U.S., Realtek refused to provide any further agreements and any distributor reports.
`
`But Realtek may not “open the door” to ParkerVision’s access to Realtek’s sales and/or
`
`importation operations then unliterally refuse to complete its production once ParkerVision
`
`identified foreign conduct that has a direct causal relationship to infringing Realtek chips sales
`
`and/or importation in the U.S. Accordingly, the Court ordered Realtek to produce the documents
`
`ParkerVision sought. D.I. 104.
`
`Fact discovery, however, closes on July 2, 2024. With Realtek’s forthcoming document
`
`production, time required to review (and potentially translate) those documents, and fact
`
`depositions to be taken, ParkerVision submits that fact discovery should be extended along with
`
`the other dates in the schedule, including the trial date. In addition to Realtek’s Court-ordered
`
`document production and fact depositions, ParkerVision anticipates that there will be additional
`
`follow-up discovery issues the parties will try to work through and witness schedules to account
`
`for. Realtek may try to argue that ParkerVision has failed to prosecute this case diligently and has
`
`let dates slip. But ParkerVision’s constant efforts to extract discovery from Realtek bit by bit,
`
`requiring ParkerVision to obtain the Court’s assistance on repeated occasions since the inception
`
`of this case just to be in a position to access and review Realtek’s schematics defies any such
`
`argument Realtek may raise. ParkerVision has produced over 320,000 documents (totaling
`
`several million pages) in this case, and not just the documents from its case against Qualcomm.
`
`ParkerVision has updated its productions and has agreed to continue its investigations for
`
`additional documents. ParkerVision has also agreed to supplement its interrogatory responses.
`
`The failure to meet the fact discovery deadline in this case does not fall on ParkerVision.
`
`This case involves complex technology and over twenty accused products, and Realtek’s chosen
`
`approach to battle against the discovery ParkerVision seeks at every turn since this case began
`
`7
`
`

`

`Case 6:22-cv-01162-ADA Document 105 Filed 06/18/24 Page 11 of 14
`
`has not made the path forward any simpler or efficient. Realtek’s strategy is clear: run out the
`
`clock on discovery through delay tactics and repeated discovery disputes, and then push to have
`
`the case tried before a jury on a wholly incomplete record. ParkerVision, however, should be
`
`afforded the time to complete and use the discovery it has fought so diligently to obtain. Its case
`
`and the factual record should not be comprised by Realtek’s tactics and efforts to squeeze
`
`ParkerVision against an unworkable July 2, 2024 fact discovery cut-off. This factor, therefore,
`
`weighs in favor of amending the case schedule as ParkerVision proposed.
`
`B.
`
`Amending the case schedule is important to the development of the evidence
`in the case and the case’s fair and just resolution.
`
`The importance of the schedule modification weighs in favor of granting this motion and
`
`entering an amended case schedule. As explained above, the discovery the Court ordered just last
`
`week is highly relevant to the infringement and damages issues in this case. In addition to the
`
`chip schematics ParkerVision fought for almost nine months to obtain and finally accessed and
`
`reviewed in April by traveling to Realtek’s Taiwan facilities, the documents relating to Realtek’s
`
`research, chip design and development, specifications, testing, presentations, planning,
`
`roadmaps, marketing, and competitive analyses regarding the accused chips are also highly
`
`relevant to infringement. Similarly, Realtek’s distributor agreements and the follow-on reports
`
`and information those agreements require to be exchanged between Realtek and its distributors
`
`are highly relevant to the accused chips being imported and/or sold into the U.S. and Realtek’s
`
`direct causal relationship to infringing chips sales and/or importation in the U.S.
`
`Modifying the case schedule is important to the completion of fact discovery in this case.
`
`ParkerVision should be entitled to review and use the Court-ordered discovery to prove its
`
`infringement and damages cases. And ParkerVision should not be required to take the
`
`depositions of Realtek’s witnesses when document production is not complete, when the parties
`
`8
`
`

`

`Case 6:22-cv-01162-ADA Document 105 Filed 06/18/24 Page 12 of 14
`
`continue to work through discovery issues, including those that Realtek has raised, and expected
`
`follow-up. Extending the fact discovery deadline and modifying the case schedule will allow
`
`ParkerVision to develop and obtain the evidence it seeks and to which it is entitled. This factor
`
`weighs in favor of amending the case schedule.
`
`C.
`
`Realtek will not be prejudiced by extending fact discovery and amending the
`case schedule in this case.
`
`Realtek will not be prejudiced by ParkerVision’s proposed amended case schedule. As
`
`explained above, given Realtek’s unnecessarily combative approach to discovery in this case and
`
`the significant and highly relevant discovery that remains, including last week’s Court-ordered
`
`document production, there is good cause to extend the July 2, 2024 fact discovery deadline and
`
`subsequent dates in the case schedule. Realtek may complain about the proposed September 13,
`
`2024 fact discovery cut-off, but ParkerVision should not have its back against the wall to
`
`squeeze-in the review, translations and follow-up regarding Realtek’s document productions, and
`
`then take and defend all of the fact depositions in this case in a month or whatever shortened
`
`period Realtek may argue for in its opposition to this motion (particularly when Realtek refused
`
`to even engage in discussing a modified schedule). In fact, this has been Realtek’s strategy all
`
`along; use delay tactics and force ParkerVision to fight for every bit of discovery (even though
`
`Realtek already should have produced this discovery many months ago), leaving ParkerVision up
`
`against a discovery cut-off and an incomplete record.
`
`And at bottom, any feigned prejudice results from Realtek’s own obstructionist conduct
`
`and delay tactics. This case may have been filed on November 10, 2022, but Realtek then battled
`
`against service for the next nine months, taking that issue to the Federal Circuit on a mandamus
`
`petition. And then Realtek could have produced its schematics in September 2023 when the case
`
`got going and it was ordered to do so instead of playing games with SPICE files and snippets of
`
`9
`
`

`

`Case 6:22-cv-01162-ADA Document 105 Filed 06/18/24 Page 13 of 14
`
`schematics, forcing ParkerVision to ultimately obtain another order to review Realtek’s
`
`schematics in Realtek’s Cadence environment in Taiwan. And Realtek could have produced its
`
`responsive technical documents months ago without requiring ParkerVision to approach the
`
`Court for relief. Accordingly, adjusting the dates in the schedule by two months or so does not
`
`cause Realtek undue prejudice, particularly where Realtek has caused the delays in this case and
`
`where the discovery that remains is highly relevant to the infringement and damages issues in
`
`this case, and a fair and just resolution.
`
`IV. Conclusion.
`
`For the foregoing reasons, ParkerVision respectfully requests the Court to adopt the
`
`proposed amended scheduling order.
`
`Dated: June 18, 2024
`
`
`
`
`Respectfully submitted,
`
`
`
`
`
`/s/ Raymond W. Mort, III
`Raymond W. Mort, III
`Texas State Bar No. 00791308
`raymort@austinlaw.com
`THE MORT LAW FIRM, PLLC
`100 Congress Avenue, Suite 2000
`Austin, Texas 78701
`Tel/Fax: 512-865-7950
`
`Of Counsel:
`Ronald M. Daignault (pro hac vice)*
`Chandran B. Iyer (pro hac vice)
`Jason S. Charkow (pro hac vice)*
`Scott R. Samay (pro have vice)*
`Stephanie R. Mandir (pro hac vice)
`Zachary H. Ellis (Texas State Bar No. 24122606)
`rdaignault@daignaultiyer.com
`cbiyer@daignaultiyer.com
`jcharkow@daignaultiyer.com
`ssamay@ daignaultiyer.com
`smandir@daignaultiyer.com
`zellis@daignaultiyer.com
`DAIGNAULT IYER LLP
`8618 Westwood Center Drive - Suite 150
`Vienna, VA 22102
`
`10
`
`

`

`Case 6:22-cv-01162-ADA Document 105 Filed 06/18/24 Page 14 of 14
`
`
`
`
`*Not admitted in Virginia
`
`Attorneys for Plaintiff ParkerVision, Inc.
`
`11
`
`