Case 6:22-cv-01163-ADA Document 85 Filed 08/22/24 Page 1 of 12
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`Plaintiff,
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`v.
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`PARKERVISION, INC.,
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`MEDIATEK INC. and
`MEDIATEK USA INC.,
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`§
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`NON-PARTIES’ OPPOSED MOTION FOR PROTECTIVE ORDER
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`NO. 6:22-cv-01163-ADA-DTG
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`Defendants.
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`Non-parties Brickell Key Asset Management, LLC (“BKAM”), Brickell Key
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`Investments, LP (“BKI”) (together “BK”), John Sicilian, and William Yuen (all together,
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`“Movants”) respectfully request pursuant to Federal Rule of Civil Procedure 26(c) that the Court
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`grant a Protective Order forbidding the discovery Defendants Mediatek Inc. and Mediatek USA
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`Inc. (“Mediatek”) seek from them across ten, duplicative deposition and document subpoenas.
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`The subpoenas seek information that is irrelevant and privileged many times over. The Court
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`should end Mediatek’s abusive fishing expedition.
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`BACKGROUND
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`BKI is a Delaware litigation finance limited partnership headquartered in Guernsey. Decl.
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`of William Yuen ¶ 3. It funds plaintiffs and law firms with promising legal claims in exchange
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`for a share of the recovery. Id. BKI is the client of BKAM, a Delaware LLC headquartered in
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`Florida. Id. ¶ 2. In 2015, the plaintiff in this case, ParkerVision, approached BKI to request
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`funding for lawsuits that it wanted to file against infringers of its patents. Id. ¶ 6. Before funding
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`ParkerVision, BK conducted confidential diligence pursuant to a non-disclosure agreement where
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`it considered work product prepared by ParkerVision and its attorneys and work product prepared
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`1
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`Case 6:22-cv-01163-ADA Document 85 Filed 08/22/24 Page 2 of 12
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`by BK and its outside counsel. Id. ¶¶ 4, 7. On February 24, 2016, BKI and ParkerVision executed
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`a Claims Proceeds Investment Agreement (“CPIA”) memorializing the terms of their funding
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`agreement and agreeing to keep further communications confidential. Id. ¶ 8; Ex. A. The funds
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`from the CPIA were used to finance lawsuits against defendants unrelated to this Mediatek
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`litigation. ParkerVision publicly filed redacted versions of the CPIA and various follow-on
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`agreements with the Securities and Exchange Commission. Id. ¶ 8; Ex. A.
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`On November 10, 2022, more than six years after BK’s funding, ParkerVision sued
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`Mediatek in this Court, alleging infringement of four ParkerVision patents.1 Dkt. 1. BKI did not
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`fund this lawsuit and believes that a third party may have. Yuen Decl. ¶ 10.
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`On May 17, 2024, Mediatek served deposition and document subpoenas on BKI, with
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`South Carolina as the place of compliance. Decl. of Caroline Schechinger Exs. 1–2. BKI timely
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`objected to those subpoenas on grounds of irrelevance, privilege, undue burden, and violating the
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`requirement that the place of compliance be “within 100 miles of where the person resides, is
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`employed, or regularly transacts business in person,” because BKI has no employees in the U.S.
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`Fed. R. Civ. P. 45(c)(1)(A), (2)(A), (d)(3)(A)(ii) (emphasis added); Exs. 3–4; Yuen Decl. ¶ 3.
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`BKI repeatedly pointed Mediatek to rulings from this and other Courts across the country
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`making clear that the discovery sought is irrelevant and privileged—not to mention far unduly
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`burdensome and disproportionate. See Ex. 22 (citing ten cases and several standing orders).
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`Mediatek’s subpoenas request documents and testimony concerning “any compensation with
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`respect to this Action,” and—even further afield—“all payments made by ParkerVision to” BKI
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`“under any agreement involving [BKI] and ParkerVision,” and “any investment in ParkerVision
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`1 Specifically, Patent Nos. 6,049,706; 6,266,518; 8,660,513; and 7,292,835. On August
`19, 2024, this Court granted the parties’ joint motion to dismiss the ’835 patent. Dkt. No. 80.
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`and/or any Parker Vision patent.” Exs. 1–2. As BKI stressed to Mediatek, this Court’s Standing
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`Order precludes the use of litigation-funding information in patent-infringement cases, because it
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`would serve only to distract the jury from the actual issues. See Ex. 22 (citing Albright, J., Standing
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`Order Governing Proceedings – Patent Cases, Appendix C (W.D. Tex. Jan. 24, 2024)), at 3.
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`On June 25, 2024, BKI provided Mediatek a privilege log stating BKI’s privilege
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`objections to non-public documents on a category-by-category basis. Ex. 5. Mediatek doubled
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`down. Ignoring the long line of cases against it, Mediatek proceeded to serve eight more deposition
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`and documents subpoenas to BKAM, Mr. Yuen (BKAM’s CEO), and Mr. Sicilian (a former
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`BKAM officer), which ask for the same information Mediatek requested from BKI. Exs. 6–13.
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`Mediatek went so far as to try to serve Mr. Sicilian repeatedly at his home. Yuen Decl. ¶ 11.
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`Movants represented that BKAM has possession, custody, and control over documents that
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`may be responsive to all ten subpoenas. See Yuen Decl. ¶ 12; Ex. 24. They thus requested that
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`Mediatek pursue the BKAM subpoenas and drop the others. Ex. 24. But Mediatek refused. Id.
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`On July 27, 2024, Mediatek purported to “streamline” its subpoenas from 25 to 10 requests.
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`See Exs. 22–23. The requests narrowed in number but not in substance. Mediatek continues to
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`seek discovery on the following blunderbuss topics (among others):
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` “Documents and Communications relating to this Action,” as well as “All Documents
`and Communications sent or received by You relating to, referring to, or mentioning
`MediaTek” (Request Nos. 1, 23);
` “Documents and Communications relating to any formal or informal valuations of
`ParkerVision and/or involving the subject matter of the Asserted Patents,” as well as
`“analyses . . . relating to the value of this Action” and “analyses . . . conducted before
`entering any contract with ParkerVision, amending any contract with ParkerVision,
`and/or making any investment in ParkerVision and/or any ParkerVision patent.”
`(Request Nos. 5, 6, 9); and
` “Documents sufficient to show all payments made by ParkerVision to You” and
`Documents and Communications relating to “proceeds or other benefits” and other
`interests in, or compensation received by, Non-parties and ParkerVision in connection
`with this action, the Asserted Patents, and/or Related Patents (Request Nos. 4, 8, 17,
`20, 21).
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`On August 15, 2024, Mediatek declared the parties to be at impasse. See Ex. 24. On
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`August 19, Movants twice requested to meet and confer with Mediatek’s lead counsel. Id.
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`Mediatek ignored both requests. Id. Later that day, Mediatek moved to compel only BKI in the
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`District of Delaware—even though Rule 45 requires it to file in the “the court for the district where
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`compliance is required” (i.e., South Carolina), Fed. R. Civ. P. 45(d)(3). Id.; Exs. 1–2. On August
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`20, Movants informed Mediatek that they intended to move this Court for a protective order. Ex.
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`25. On August 21, Mediatek suddenly purported to withdraw the subpoenas against BKAM, Mr.
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`Sicilian, and Mr. Yuen, but stated that it could re-issue those subpoenas at its sole discretion. Id.
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`After lead counsel for Movants met and conferred with Mediatek, it informed Movants’ lead
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`counsel that it opposed this motion for a protective order, which seeks across-the-board protection
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`for all Movants. Schechinger Decl. ¶ 28; Ex. 25. On August 22, Mediatek agreed to transfer its
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`motion to this Court. Ex. 25. Given that Mediatek’s ten subpoenas request compliance in three
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`different judicial districts (Charleston, S.C., Tallahassee, Fl., and Miami, Fl.), this Court is the only
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`court that can end Mediatek’s game of multi-jurisdictional whack-a-mole in one stroke.
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`ARGUMENT
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`Third-party subpoenas are subject to the same limits imposed on party discovery. See Field
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`v. Anadarko Petroleum Corp., 2020 WL 4937122, at *2 (S.D. Tex. Aug. 24, 2020). Discovery
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`that is irrelevant, privileged, or not proportional to the needs of the case is “prohibited.” Id. (citing
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`Fed. R. Civ. P. 26(b)). Rule 26(c) authorizes protective orders, for good cause shown, “to protect
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`a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed.
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`R. Civ. P. 26(c)(1). Mediatek’s subpoenas are per se overly burdensome because to the extent
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`relevant, non-privileged, responsive documents exist, they would in large part be equally available
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`from ParkerVision—a party in the litigation. A court “must” enter a protective order prohibiting
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`Case 6:22-cv-01163-ADA Document 85 Filed 08/22/24 Page 5 of 12
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`discovery where “the proposed discovery . . . can be obtained from some other source that is more
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`convenient, less burdensome, or less expensive.” Fed. R. Civ. P. 26(b)(2)(C), (c)(1).
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`The Court should issue an across-the-board protective order for two, independent reasons.
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`First, the litigation-funding information Mediatek seeks is irrelevant to this patent case. Second,
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`even if relevant (which it is not), it is protected from disclosure under the work-product doctrine
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`and attorney-client communications privilege. Separately, the Court should protect BKI from
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`discovery on the additional basis that the subpoenas to it violate Rule 45’s 100-mile rule. See Tele
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`Draulic, Inc v. Hetronic Int’l, Inc., 2016 WL 3606775, at *2-4 (D. Del. June 30, 2016) (quashing
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`subpoenas to Delaware-incorporated company with no U.S. employees that operated in Sweden).
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`I. The Court Should Bar The Irrelevant And Burdensome Discovery Mediatek Seeks.
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`Mediatek’s subpoenas fail at the threshold because they request information that is neither
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`relevant nor proportional to the needs of this case. Mediatek’s subpoenas request information on
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`litigation funding of this suit (despite BKI not funding this lawsuit) and funding information
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`regarding ParkerVision’s other patents and other litigations. See Fed. R. Civ. P. 26(b). As this
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`Court has explained, “[i]t is well-settled that information regarding litigation funding is irrelevant,
`and protected from discovery.” Mullen Indus. LLC v. Apple Inc., No. 6:22-CV-00145, Dkt. 64 at
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`p. 4 (W.D. Tex. Oct. 19, 2022) (Albright, J.) (quashing deposition topics seeking information
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`regarding litigation funders). Mullen (a patent-infringement case) illustrates that the general rule
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`applies equally here. “Courts, in this district and elsewhere, have routinely held that information
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`about litigation funding is largely irrelevant” to the “primary issues in a patent case—infringement,
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`invalidity, and damages,” and “thus beyond the scope of discovery absent a compelling showing
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`of a legitimate concern (such as standing or conflicts of interest).” Trustees of Purdue Univ. v.
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`STMicroelectronics N.V., No. 6:21-CV-00727-ADA, Dkt. 250 at 5 (W.D. Tex. Jan. 18, 2023); see,
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`e.g., Lower48 IP LLC v. Shopify, Inc., 2023 WL 11893431, at *3 (W.D. Tex. Nov. 2, 2023)
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`(affirming denial of motion to compel litigation-funding-related discovery in patent case).
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`Mediatek falls far short of making the required particularized and “compelling” showing
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`of relevance. For months, Movants pressed Mediatek to articulate the relevance of the information
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`it seeks. It could not. On June 7, Mediatek generically asserted that its requests relate to “the
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`reasonableness of ParkerVision’s damages requests, the strength of ParkerVision’s infringement
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`positions, and standing,” see Ex. 22—which are the very topics that do not in the abstract justify
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`litigation-funding-related discovery. A month later, on July 9, Mediatek repeated those generic
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`arguments and added others, e.g., that the subpoenas seek relevant information regarding “conflicts
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`of interest that may exist as a result of the [litigation-financing] arrangement.” See Ex. 26. As the
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`above cases make clear, those boiler-plate arguments do not cut it; Mediatek did not articulate
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`much less, demonstrate, any “legitimate concern” on those issues—particularly where BK does
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`not fund this lawsuit. For that reason alone, the Court should protect Movants from the discovery.
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`A cursory glance at Mediatek’s “streamlined” requests confirms a protective order is
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`necessary because Mediatek has made no effort to comply with the proportionality and undue
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`burden requirements of Rules 26 and 45. Mediatek seeks documents far removed from the three
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`at-issue patents—e.g., documents concerning “any investment in ParkerVision and/or any
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`ParkerVision patent” (of 250+ patents), “any contract with ParkerVision,” and “all Documents and
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`Communications” that merely “mention[] MediaTek.” Exs. 1–2. And it seeks to depose not only
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`BK but one current and one former employee regarding these same kitchen-sink requests. Exs. 1–
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`2, 6–13; Yuen Decl. ¶ 12. Mediatek refused to consolidate its subpoenas until the eleventh hour,
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`and then only without prejudice to reserve them. Exs. 24-26. Its failure to “limit [its] requests to
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`relate to the suit’s relevant subject matter or time” provide further justification for a protective
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`order. See Scrum All. Inc. v. Scrum, Inc., 2020 WL 6559625, at *2 (E.D. Tex. Nov. 9, 2020)
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`(concluding that subpoenas were “too burdensome” on nonparties’ “time and money” where they
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`would “likely ensnare scores of communications unrelated” to the dispute).
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`II. The Court Should Prohibit Mediatek’s Discovery Into Privileged Information.
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`The Court should issue a protective order for the independent reason that the information
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`Mediatek seeks is protected under the work-product doctrine and attorney-client privilege.
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`A. The Work Product Doctrine Protects The Material Mediatek Seeks.
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`The work-product doctrine bars discovery of materials “that are prepared in anticipation of
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`litigation or for trial by or for another party or its representative (including the other party’s
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`attorney, consultant, surety, indemnitor, insurer, or agent).” Fed. R. Civ. P. 26(b)(3)(A). As
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`ParkerVision’s strategic partners in this suit, BK are such representatives. “[T]he privilege can
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`apply where litigation is not imminent, as long as the primary motivating purpose behind the
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`creation of the document was to aid in possible future litigation.” In re Kaiser Aluminum &
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`Chemical Co., 214 F.3d 586, 593 (5th Cir. 2000) (internal quotation marks omitted). Opinion
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`work product, which constitutes “the mental impressions, conclusions, opinions, or legal theories
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`of a party’s attorney or other representative,” Fed. R. Civ. P. 26(b)(3)(B), “is protected absolutely
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`from production.” Teleplus, Inc. v. Avantel, S.A., 2003 WL 23282491, at *3 (W.D. Tex. Apr. 9,
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`2003); see also Fed. R. Civ. P. 26(b)(3)(B). Other materials prepared in anticipation of litigation
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`are “ordinary work product,” Teleplus, 2003 WL 23282491, at *3, which is protected unless the
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`party seeking it “has substantial need for the materials to prepare its case and cannot, without
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`undue hardship, obtain their substantial equivalent” otherwise. Fed. R. Civ. P. 26(b)(3)(A)(i)–(ii).
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`The work-product doctrine protects four key categories of documents: (1) BK’s non-public
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`litigation-funding documents, (2) diligence documents between BK and ParkerVision, (3)
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`Case 6:22-cv-01163-ADA Document 85 Filed 08/22/24 Page 8 of 12
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`diligence documents BK and its outside counsel prepared based on the information BK received
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`from ParkerVision, and memoranda and other documents that BK prepared for its investors using
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`the same; and (4) BK’s communications with ParkerVision and its counsel regarding
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`ParkerVision’s patent portfolio and this lawsuit. Yuen Decl. ¶ 13. For all of the above, the
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`“primary motivating purpose . . . was to aid in” potential litigation. Kaiser, 214 F.3d at 593
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`(internal quotation marks omitted). See, e.g., United States v. Homeward Residential, Inc., 2016
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`WL 1031154, at *6 (E.D. Tex. Mar. 15, 2016) (concluding that “litigation funding information is
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`protected by the work product doctrine”). Allowing discovery into discussions among
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`ParkerVision, BK, and their in-house and outside lawyers, and diligence documents that reflect
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`the work product of ParkerVision, BK, and their lawyers, would give Mediatek an unfair window
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`into ParkerVision’s litigation strategy. See Hickman, 329 U.S. at 516 (Jackson, J., concurring)
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`(“Discovery was hardly intended to enable a learned profession to perform its functions either
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`without wits or on wits borrowed from the adversary.”).
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`Diligence documents, infringement analyses, and other litigation-funding documents that
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`reflect counsel’s opinion of the legal claims, expected damages, and the parties’ legal strategies
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`are core opinion work product. See Hickman v. Taylor, 329 U.S. 495, 516 (1947). So are non-
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`public litigation-funding agreements. To prepare those agreements, BK relied on ParkerVision’s
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`counsel’s assessment of legal claims, expected damages, and the likely cost of future litigations
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`and sought its outside counsel’s views on the same. Yuen Decl. ¶¶ 5, 7. Those assessments
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`informed every material aspect of the agreements, from the funding that BKI provided, to the
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`structure and timing of BKI’s return. Id. ¶ 5. Disclosing the non-public agreements risks
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`disclosing counsel’s opinions of the likelihood of success of ParkerVision’s litigation efforts and
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`the resources ParkerVision needs to carry out its legal strategy—all core opinion work product.
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`See, e.g., Mondis Tech., Ltd. v. LG Elecs., Inc., 2011 WL 1714304, at *3 (E.D. Tex. May 4, 2011)
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`(explaining that documents “created for potential investors” were protected work product because
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`they “reveal[ed] [the party’s] overall litigation and licensing strategy and . . . show the
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`implementation of that strategy”).
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`The sharing of documents between BK and ParkerVision and their respective counsel does
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`not waive work-product protection because “disclosure to a third party” does “not automatically
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`waive[]” the protection. United States ex rel. Fisher v. Ocwen Loan Servicing, LLC, 2016 WL
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`1031157, at *5 (E.D. Tex. Mar. 15, 2016) (citation omitted). There is waiver “only if work-product
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`is given to adversaries or treated in a manner that substantially increases the likelihood that an
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`adversary will come into possession of the material.” Id. (citation omitted). Through the NDAs,
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`BKI and ParkerVision agreed to maintain confidentiality (and they are aligned parties in any event,
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`so the sharing of materials between them does not increase the likelihood of possession by an
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`adversary). See, e.g., Purdue Univ., No. 6:21-CV-00727-ADA, Dkt. 250 at 4 (concluding that
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`NDA between litigation funder and plaintiff was sufficient to avoid waiver).
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`B. Attorney-Client Privilege Protects The Material Mediatek Seeks.
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`The Court also should protect BK’s attorney-client communications from discovery. “The
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`attorney[-]client privilege . . . protect[s] communications and papers generated when a client
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`engages his attorney,” In re Burlington N., Inc., 822 F.2d 518, 525 (5th Cir. 1987), which includes
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`“communications made in confidence by a client to his lawyer for the purpose of obtaining legal
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`advice,” King v. Univ. Healthcare Sys., L.C., 645 F.3d 713, 720 (5th Cir. 2011) (quotation
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`omitted), and “the giving of professional advice to those who can act on it,” Upjohn Co. v. U.S.,
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`449 U.S. 383, 390 (1981). Inclusion of a third party generally waives the attorney-client privilege
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`unless the third party shares a “common legal interest.” See, e.g., Hodges, Grant & Kaufman v.
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`United States, 768 F.2d 719, 721 (5th Cir. 1985).
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`The subpoenas invade BK’s and ParkerVision’s attorney-client privilege because Mediatek
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`seeks legal advice BK sought from its outside counsel and communications with ParkerVision and
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`its counsel. The former clearly fall under the attorney-client privilege because they are (1)
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`“confidential communication[s]; (2) to a lawyer or his subordinate; (3) for the primary purpose of
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`securing either a legal opinion or legal services, or assistance in some legal proceeding.” United
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`States v. Murra, 879 F.3d 669, 681-82 (5th Cir. 2018) (emphasis and citation omitted). The latter
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`also are privileged because BK and ParkerVision share a common legal interest in the protection
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`of ParkerVision’s patents. See Power-One, Inc. v. Artesyn Techs., Inc., 2007 WL 1170733, at *2
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`(E.D. Tex. Apr. 18, 2007) (finding common legal interest between defendant and third-parties
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`where the latter were concerned with any “legal hindrance” to defendant’s patent rights).
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`Although the Fifth Circuit has said that the common interest privilege protects “(1)
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`communications between co-defendants in actual litigation and their counsel;” and “(2)
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`communications between potential co-defendants and their counsel[,]” In re Santa Fe Int’l Corp.,
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`272 F.3d 705, 710 (5th Cir. 2001), it remains “an open question in the Fifth Circuit whether the
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`common legal interest privilege . . . would apply to communications between Plaintiffs and a non-
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`party,” Ultra Premium Servs., LLC v. OFS Int’l, LLC¸ 2020 WL 13413208, at *2 (S.D. Tex. Apr.
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`28, 2020). Here, BK and ParkerVision have a common legal interest—protecting ParkerVision’s
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`patents—and therefore desire the same interpretation of law and application to the facts. As the
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`Second Circuit recognized in Schaeffler v. United States, 806 F.3d 34 (2d Cir. 2015), such joint
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`financial interest supplies a common legal interest. See id. at 42 (“[T]he interest in avoiding the
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`losses . . . established a common legal interest.”). This Court likewise should recognize a common
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`interest between plaintiffs and litigation-funders like BK because it would serve the same salutary
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`purpose as the common interest privilege among co-defendants: allowing parties with aligned
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`interests to coordinate their resources without fear of disclosure to their adversaries. See, e.g.,
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`AgroFresh Inc. v. Essentiv LLC, 2019 WL 4917894, at *2 (D. Del. Oct. 4, 2019).
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`CONCLUSION
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`For all those reasons, the Court should grant Movants’ motion for a protective order and
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`award their expenses incurred in making this motion. See Fed. R. Civ. P. 26(c)(3).
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`Dated: August 22, 2024
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`Respectfully submitted,
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`/s/ Derek T. Ho
`Derek T. Ho
`Caroline A. Schechinger
`Andrew Skaras
`KELLOGG, HANSEN, TODD,
`FIGEL & FREDERICK, P.L.L.C.
`1615 M Street, NW, Suite 400
`Washington, D.C. 20036
`Phone: (202) 326-7900
`Fax: (202) 326-7999
`dho@kellogghansen.com
`cschechinger@kellogghansen.com
`askaras@kellogghansen.com
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`Raymond W. Mort, III
`Texas State Bar No.
`00791308
`raymort@austinlaw.com
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`THE MORT LAW FIRM, PLLC
`111 Congress Ave, Suite 500
`Austin, Texas 78701
`Tel/Fax: (512) 865-7950
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`Attorneys for Movants Brickell Key
`Asset Management, LLC, Brickell
`Key Investments, LP, John Sicilian,
`and William Yuen
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`By:
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`Case 6:22-cv-01163-ADA Document 85 Filed 08/22/24 Page 12 of 12
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`CERTIFICATE OF CONFERENCE
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`On the 21st day of August, 2024, the undersigned counsel conferred with lead opposing
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`counsel concerning the relief sought in this Motion, and was advised that opposing counsel
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`/s/ Derek T. Ho
`Derek T. Ho
`KELLOGG, HANSEN, TODD,
`FIGEL & FREDERICK, P.L.L.C.
`1615 M Street, NW, Suite 400
`Washington, D.C. 20036
`Phone: (202) 326-7900
`Fax: (202) 326-7999
`dho@kellogghansen.com
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`opposed this Motion.
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`12
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