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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`AUSTIN DIVISION
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`ANCORA TECHNOLOGIES, INC.
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`VS.
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`LG ELECTRONICS, INC., ET AL
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`*
`*
`*
`*
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`July 27, 2020
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`* *
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` CIVIL ACTION NO. AU-20-CV-34
`SAMSUNG ELECTRONICS CO., LTD, *
` ET AL
`*
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`BEFORE THE HONORABLE ALAN D ALBRIGHT, JUDGE PRESIDING
`TELEPHONIC DISCOVERY HEARING
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`APPEARANCES:
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`For the Plaintiff:
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`For Defendant LG:
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`For Defendant Samsung:
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`Charles L. Ainsworth, Esq.
`Robert Christopher Bunt, Esq.
`Parker, Bunt & Ainsworth, P.C.
`100 East Ferguson, Suite 418
`Tyler, TX 75702
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`Andres Healy, Esq.
`Steven M. Seigel, Esq.
`Susman Godfrey L.L.P.
`1201 Third Avenue, Suite 3800
`Seattle, WA 98101
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`Elizabeth M. Chiaviello, Esq.
`Winstol D. Carter, Jr., Esq.
`Thomas R Davis, Esq.
`Morgan Lewis and Bockius LLP
`1000 Louisiana Street, Suite 4000
`Houston, TX 77002
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`Collin W. Park, Esq.
`Morgan Lewis & Bockius, LLP
`1111 Pennsylvania Ave., N.W.
`Washington, DC 20004-2541
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`Anupam Sharma, Esq.
`Robert T. Haslam, Esq.
`Covington & Burling LLP
`3000 El Camino Real
`5 Palo Alto Square, 10th Floor
`Palo Alto, CA 94306
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
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`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`ANCORA Ex. 2002, Page 1
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`Eric T. O'Brien, Esq.
`Covington & Burling LLP
`850 Tenth Street, NW, One City Center
`Washington, DC 20001-4956
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`Melissa Richards Smith, Esq.
`Gillam & Smith, LLP
`303 South Washington Avenue
`Marshall, TX 75670
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`Jared Frisch, Esq.
`Covington & Burling LLP
`One City Center, 850 Tenth Street, NW
`Washington, DC 20001-4956
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`Kristie M. Davis
`United States District Court
`PO Box 20994
`Waco, Texas 76702-0994
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`Court Reporter:
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`Proceedings recorded by mechanical stenography, transcript
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`produced by computer-aided transcription.
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
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`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`ANCORA Ex. 2002, Page 2
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`(July 27, 2020, 11:01 a.m.)
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`MS. MILES: Telephonic discovery conference in Civil
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`Action 1:20-CV-34, styled Ancora Technologies, Incorporated
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`versus LG Electronics, Incorporated, LG Electronics USA,
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`Incorporated, Samsung Electronics America, Incorporated and
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`Samsung Electronics Company, Limited.
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`THE COURT: Good morning, everyone. If I could hear
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`representations from counsel beginning with the plaintiff.
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`MR. HEALY: Good morning, Your Honor. This is Mr. Healy
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`of Susman Godfrey on behalf of plaintiff Ancora. I believe
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`with me is -- well, I'll let my colleagues introduce
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`themselves. Apologies.
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`THE COURT: Please.
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`MR. BUNT: Good morning, Your Honor. This is Chris Bunt
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`from Parker Bunt & Ainsworth, and I believe Mr. Charley
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`Ainsworth is also on the phone.
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`MR. AINSWORTH: Hi, Your Honor.
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`THE COURT: Good morning.
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`MR. SIEGEL: And Steve Siegel with Susman Godfrey is here
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`as well.
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`THE COURT: Okay. Anyone else for plaintiff on the phone
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`that is going to be speaking?
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`Anyone -- and if I can hear from defense counsel, please.
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`MS. SMITH: Good morning, Your Honor. This is Melissa
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`Smith for Samsung. I have a couple others on the line for
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
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`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`ANCORA Ex. 2002, Page 3
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`Samsung as well. I'll let them introduce themselves.
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`THE COURT: Okay.
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`MR. HASLAM: Good morning, Your Honor. This is Bob Haslam
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`representing Samsung, and I'll be doing the speaking today.
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`THE COURT: Good morning, Mr. Haslam.
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`MR. HASLAM: Good morning.
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`MR. FRISCH: Good morning, Your Honor. This is Jared
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`Frisch also representing Samsung.
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`THE COURT: Okay.
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`MR. SHARMA: This is Anupam Sharma also representing
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`Samsung.
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`THE COURT: Thank you, sir.
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`MR. SHARMA: Good morning, Your Honor.
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`THE COURT: Good morning.
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`And for LG?
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`MR. DAVIS: Good morning, Your Honor. This is Tom Davis
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`from Morgan Lewis for LG. And also on the line I've got Win
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`Carter, Collin Park and Elizabeth Chiaviello.
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`THE COURT: And will anyone be speaking for LG this
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`morning?
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`MR. DAVIS: I'll be doing the argument this morning, Your
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`Honor.
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`THE COURT: Very good. Very good.
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`Okay. Let me say a couple things. Let me begin by
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`expressing -- Mr. Healy, I want to take the opportunity, I sure
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
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`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`ANCORA Ex. 2002, Page 4
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`hope you will communicate to Steve Susman's family my thoughts.
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`I haven't had an opportunity to speak to anyone from your firm
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`since he passed, and I just hope you will relay what a great
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`loss I think that is. And so I would appreciate that.
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`Also, I want to thank everyone on the phone for doing what
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`I've been advocating, which is coming to the Court quickly when
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`there is an issue and allowing me the opportunity to get it
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`resolved so we can keep everything on track and get this case
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`to trial on time.
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`So with -- thank you for giving me the chance to say the
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`words on the record.
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`Mr. Healy, if you -- if you would address the Court,
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`please.
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`MR. HEALY: Thank you, Your Honor. And certainly
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`appreciate your thoughts and comments regarding Mr. Susman and
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`will certainly relay those to his family and the rest of the
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`firm. So definitely appreciate that.
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`With respect to the issues here today, Your Honor, there
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`are two. Number one, plaintiffs are requesting the Court's
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`assistance, and in light of the deteriorating COVID situation
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`both in Texas and across the country, that Ancora be able to
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`complete its source code review using certain remote
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`techniques.
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`And then number two, Your Honor, that the Court resolve
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`the parties' disagreements regarding certain of the terms on
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
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`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`ANCORA Ex. 2002, Page 5
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`which that remote review will occur. I just want to flag for
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`Your Honor that we did -- and attached to our request for this
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`hearing did provide the Court with the most up-to-date version
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`of the protective order amendment that LG initially had
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`proposed and then we had edited. And I believe that it does
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`contain highlighted text -- what we understand to be the
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`current remaining disputes, but --
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`THE COURT: Okay. And I -- and I've gone through that as
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`well. I mean, I looked at those in preparation for the
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`hearing.
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`So -- and so if you would like to address the Court with
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`regard to what the plaintiff is proposing the Court permit with
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`regard to source code review.
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`MR. HEALY: Yes, Your Honor. Thank you. So turning to
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`the first issue. The reason we're requesting a remote review
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`is fairly straightforward. While we need to review defendants'
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`code, we want to do so in the safest way possible for our
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`experts. Frankly, that's not only the right thing to do, but
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`it is the efficient thing to do.
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`If any of our experts get COVID, that will bring our
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`review to a standstill, it'll delay the case, and we don't want
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`that.
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`So the only real possible way at this juncture, given
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`current conditions, to guarantee the safety of our experts to
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`guarantee there's no further delay is the remote review. And I
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
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`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`ANCORA Ex. 2002, Page 6
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`just want to make clear, we haven't rushed to this result, as
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`Your Honor knows, and as the exhibits that the defendants
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`provided around 30 minutes ago reflect, our experts previously
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`agreed to continue in-person reviews based on certain
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`representations and certain -- the conditions at the time.
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`And just to be very clear, you know, unfortunately our
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`experts' willingness to continue in-person reviews has changed.
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`Number one, it's changed because of the situation across the
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`country is worsening in some respects. And it's sort of
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`punctuated by the fact that someone in the building in Tyler
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`where we had been reviewing Samsung's code did test positive
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`for COVID. And that has made our experts quite nervous. You
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`know, all of them have families, and it just makes them
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`nervous.
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`So shortly after we learned that, we reached out to both
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`defendants on July 7th to ask that they agree to remote review.
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`LG responded a few days later. We provided that response to
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`the Court as Exhibit 4.
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`I just want to focus on, you know, what LG told us. It
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`said, quote, we have confirmed with LGE that a remote review is
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`permitted for LGE's code, end quote. And they also -- LG told
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`us that it had already received permission from Google for a
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`remote review and was only waiting to hear back from Qualcomm.
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`It also told us there was no other third party we needed to --
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`to obtain permission from.
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
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`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`ANCORA Ex. 2002, Page 7
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`LG told us to be preparing the remote review amendment
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`that I mentioned, and then it told us that it --
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`THE REPORTER: Counsel, can you please slow down? I can
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`barely understand you.
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`MR. HEALY: Yes. I apologize.
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`So LG told us it would send that appeal amendment over as
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`soon as possible so that there wouldn't be any log jam for the
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`remote review, and LG also made a few other requests.
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`And frankly, Your Honor, my reaction was gratitude. We
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`really appreciated both LG's agreement to let us review
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`remotely. We also appreciated its commitment to getting this
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`done quickly, and we told LG that.
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`We then quickly did everything LG asked. We sent LG three
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`laptops that it could use as the remote review computers. We
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`gave LG all of our software registration keys, and we had our
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`experts go through LG's registration processes.
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`And then when LG did send us their protective order
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`amendment the following Tuesday, we quickly turned around our
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`edit. In short, we did everything LG asked us to do.
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`Unfortunately, after we went through all these steps, LG
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`pulled the rug out from under us. As Exhibit 5 shows, LG told
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`us on July 21st, roughly two and a half or two weeks later,
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`that despite what it had previously said, now it's not going to
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`allow us to do a remote review. And it said we should continue
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`in-person reviews unless and until, you know, all other avenues
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
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`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`ANCORA Ex. 2002, Page 8
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`for in-person review had been exhausted.
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`So in short, LG went back on its word and now still is
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`refusing to allow us to conduct the remote review. And the
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`only practical result of this is now we have not been able to
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`review code for nearly three weeks. And it's really just an
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`unfortunate and unnecessary delay when we thought that we had
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`an agreement and were very grateful for that agreement.
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`Certainly the situation with Samsung is slightly
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`different. After weeks of requests, Samsung still is refusing
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`to allow us to conduct a remote review.
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`And again, Your Honor, I frankly just don't understand the
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`basis for defendants' refusal to switch to the safer more
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`efficient approach that we're suggesting. As far as we know,
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`no third parties objected to this approach, and as frankly
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`demonstrated by the exhibit that LG provided the Court, courts
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`across the country are ordering the more procedures.
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`Judge Gilstrap, for example, recently issued a standing
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`order requiring remote reviews. In it he said, you know, the
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`Court finds that an in-person source code review is unduly
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`hazardous, and in some cases impossible, and as a result he's
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`ordered all parties to work together to implement procedures
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`that will enable a remote review of source code. As LG's
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`exhibits show.
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`You know, companies like Qualcomm and Apple who are I
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`think the pinnacle of security conscious and sophisticated are
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
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`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`ANCORA Ex. 2002, Page 9
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`now permitting remote reviews of their code. And in fact, one
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`of the orders that LG provided this Court is from a case that
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`I'm litigating in Delaware, and it involves Qualcomm, and
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`frankly what Qualcomm -- what we are proposing here is just as
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`stringent if not more stringent than what Qualcomm and who is a
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`third party in that case agreed to do.
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`And I just want to be very clear, you know, we are not
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`demanding that LG or Samsung simply send us a laptop loaded
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`with its code. What we are happy to agree to and what we had
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`proposed to agree to is that the code and the code computers
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`always remain in the possession of defendants. They can locate
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`them wherever they like. All that we would receive is a laptop
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`that at certain dates and times that defendants have to
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`authorize. We can remotely connect to those source code
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`computers and conduct a remote review. It's the same procedure
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`that Qualcomm, you know, is using, at least in my case and I
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`understand in cases across the country.
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`And, you know, it doesn't even stop there, Your Honor. To
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`ensure that there's no possibility for abuse, and these are
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`conditions as set forth in greater detail in the protective
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`order amendment, but we have agreed that our experts only will
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`be able to log in when the defendant says so. We have to give
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`them advanced notice, and they have to approve.
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`We have agreed to setup web cams so that the defendants
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`can watch our experts' every move. We have agreed that
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
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`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`ANCORA Ex. 2002, Page 10
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`defendants can log our experts' keystrokes so that they know
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`exactly what they're doing. And we even have agreed that
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`defendants can record our experts' screen so that if there is
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`ever any dispute about any impropriety, they effectively are
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`sitting on the computer with our experts. They'll have more
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`control and more oversight than they would if our experts were
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`reviewing in person under the current protocols.
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`And that's all something that we are willing to agree to
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`and have agreed to in order to make sure that nothing that we
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`do or that I do puts my experts' health at risk.
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`And so given everything that we have agreed to, Your
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`Honor, we simply don't understand what defendants' objection
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`is. We don't understand why they're trying to make this -- why
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`they are making this so difficult and why they're insisting
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`that our experts put themselves at risk when there's really no
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`reason for them to do so.
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`And so I'm happy to answer any questions Your Honor may
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`have, but I think our position in a nutshell is this is the
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`safest approach, the most efficient approach and an approach
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`that will ensure, to the extent we can, that this case proceeds
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`on the schedule that the Court set and that we don't have a
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`delay that Samsung, for example, has represented to the PTAB
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`that it thinks is inevitable. You know, we don't want that.
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`We want to continue this case on the current schedule. We want
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`to go to trial on the date this Court specified, and this is
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
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`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`ANCORA Ex. 2002, Page 11
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`the most efficient and safest way to ensure that we can do so,
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`Your Honor.
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`THE COURT: In a couple of cases I have, I've ordered that
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`the experts get pretty substantial safes -- I've recommended
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`gun safes -- but I think in those cases the code was actually
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`loaded on the laptops that the experts had.
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`What you're telling me is that essentially the laptops
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`that the -- your experts will be using, for lack of a better
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`word, will be dummy laptops, the code will remain in the
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`custody and control of the defendants, your experts will have
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`access to it remotely, supervised in many ways by the
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`defendants' counsel, but it won't actually -- there won't be a
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`risk of it being on your experts' laptops; is that correct?
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`MR. HEALY: That's 100 percent correct, Your Honor. I
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`would say certainly if defendants wanted to just send us a
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`laptop loaded with their code, I'd be more than happy to have
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`my experts purchase a gun safe or an equivalent mechanism, but
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`the current proposal, and as far as we understand it, their --
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`the laptops that our experts would have would only be able to
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`access remotely the actual source code computers. So there'd
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`be no actual code on those laptops.
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`THE COURT: Okay. I'm not sure who wants to speak first,
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`whether counsel for Samsung or LG. I'll -- either of you can
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`go then and I'll hear from the other.
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`MR. HASLAM: This is Bob Haslam for Samsung. In his
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
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`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`ANCORA Ex. 2002, Page 12
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`argument, Mr. Healy, the term pull the rug out from under us
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`when he was talking about the negotiations with LG --
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`THE COURT: Let's just -- I ignore all that stuff. Let's
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`just skip to the good stuff here. I just -- I don't listen to
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`that stuff. I just -- I'm going to help you guys resolve this.
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`I -- so go ahead.
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`MR. HASLAM: The reason I said that is that I think the
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`default, as everyone has recognized prior to the Coronavirus,
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`was that in-person review of source code was appropriate, those
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`are provisions in the protective order, because of the highly
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`confidential nature of the source code.
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`After the May hearing at which the Court said that any of
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`the options that were then presented sounded reasonable,
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`Samsung and Ancora negotiated that production of a source code
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`computer in Melissa Smith's office in Tyler, and
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`Mr. Hooloomann, who's the Boston expert reviewing Samsung code,
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`visited Tyler to review code.
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`And as Mr. Healy mentioned, other than the one that housed
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`the source code computer, somebody was diagnosed with the
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`Coronavirus. And Mr. Hooloomann, who was, I think, in Tyler
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`when he was notified of that, continued to examine the code in
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`Tyler.
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`On July 7th Mr. Healy wrote to Samsung, and this is
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`attached to Mr. Frisch's e-mail of 7-23, to indicate that
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`Mr. Hooloomann was no longer comfortable coming to Texas to
`
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`ANCORA Ex. 2002, Page 13
`
`

`

`14
`
`review code. And Mr. Healy at that point threw out three
`
`options, the first of which was moving the source code
`
`computers to a location in Boston near Mr. Hooloomann's home so
`
`that he wouldn't have to travel to Texas. And this was
`
`consistent with a proposal that had been made I think around
`
`the May hearing or in the May hearing that having it close to
`
`the experts who are reviewing the code would be a reasonable
`
`way to proceed.
`
`Following that July 7th request that we review one of the
`
`1 2 3 4 5 6 7 8 9
`
`10
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`three options, the first one laid out by Mr. Healy in his
`
`11
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`e-mail was that the source code computer be moved to Boston,
`
`12
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`close to Mr. Hooloomann's home. Samsung and Covington &
`
`13
`
`Burling representing them in this case explored the possibility
`
`14
`
`of doing so. And when I say explored the possibility,
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`15
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`Covington does not have an office in Boston.
`
`16
`
`In any event, Samsung was able to prevail upon its counsel
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`17
`
`in other cases Fish & Richardson. And we so notified on July
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`18
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`15th that we were able to provide a source code computer in
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`19
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`Boston as Mr. Healy had indicated in his July 7th e-mail. And
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`20
`
`while there were negotiations going on apparently with respect
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`21
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`to -- with LG regarding whether there would be in-person or
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`22
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`remote source code, at no time between July 7th and July 15th
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`23
`
`when we notified -- when Samsung notified Ancora that we could
`
`24
`
`provide the source code computer in a safe location in Boston
`
`25
`
`at Fish & Richardson where temperatures are taken upon entry to
`
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`ANCORA Ex. 2002, Page 14
`
`

`

`15
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`the office, masks are required and the expert would be given
`
`his own room which would be cleaned daily after his review.
`
`On July 16th Ancora then notified Samsung that even moving
`
`it to Boston would not be sufficient because, in part, there's
`
`another source code reviewer in Ames, Iowa, and that would --
`
`having the code available in Boston would not satisfy that
`
`expert.
`
`In response to that, Samsung again reached out to see
`
`whether or not we could provide another source code computer in
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`1 2 3 4 5 6 7 8 9
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`10
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`Ames, Iowa so that the Ames expert could likewise
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`11
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`simultaneously be reviewing the code in Ames.
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`12
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`None of that was acceptable to Ancora. And so we find
`
`13
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`ourselves in this position where, in our view, the delay that
`
`14
`
`Mr. Healy talked about has been compounded by the fact that
`
`15
`
`after telling Samsung moving the code to Boston would be
`
`16
`
`sufficient and our agreement that we could in fact provide the
`
`17
`
`source code computer in Boston and after being notified that it
`
`18
`
`had to be available in Ames, notifying them that we can do it
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`19
`
`in Ames too, that I think that satisfies the concerns about the
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`20
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`Coronavirus and Samsung's interest and LG's interest and third
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`21
`
`parties' interest in the protection -- the secure protection of
`
`22
`
`their source code by not having code traveling outside of the
`
`23
`
`review room over the Internet or over otherwise secure
`
`24
`
`connections.
`
`25
`
`So I think that the bottom line here is that we can
`
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`ANCORA Ex. 2002, Page 15
`
`

`

`16
`
`provide what I think is the preferred, and has long been
`
`preferred, method of source code review which is the in-person
`
`review.
`
`Finally, on the issue of the Coronavirus and the
`
`deteriorating situation in the rest of the country, I would
`
`note that in Boston -- in Massachusetts in an article on July
`
`14th in the Boston Herald, the headline was that
`
`Massachusetts -- Massachusetts and Boston had had the lowest
`
`average deaths in the months that they had had the -- a
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`significant decline in hospitalizations, and that the incidence
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`11
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`rate had gone down sufficiently from May 1st or May 15th,
`
`12
`
`depending on which of those statistics you were looking at.
`
`13
`
`So the situation in Boston has actually improved since
`
`14
`
`Ancora on July 7th said that Boston would be a permissible
`
`15
`
`place to locate a source code computer. And I believe the
`
`16
`
`situation, I don't have any citation to it, in Ames, in Iowa,
`
`17
`
`is similar. I think the deterioration is mainly in states
`
`18
`
`other than Iowa and Massachusetts.
`
`19
`
`And so for Samsung, which has cooperated with Ancora since
`
`20
`
`the issue of source code review has been able to provide
`
`21
`
`satisfactory and safe locations for in-person review by their
`
`22
`
`experts in Boston and Ames.
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`23
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`THE COURT: Okay. Anyone else want to add anything to
`
`24
`
`that?
`
`25
`
`MR. DAVIS: Your Honor, this is counsel for LG. If
`
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`ANCORA Ex. 2002, Page 16
`
`

`

`17
`
`Samsung's counsel has nothing further, I'd like to present our
`
`position as well.
`
`THE COURT: Please.
`
`THE REPORTER: Is this Mr. Davis?
`
`MR. DAVIS: I'm sorry. Yes. It is. This is Mr. Davis
`
`for LG from Morgan Lewis. Thank you.
`
`So, Your Honor, I just want to point out for the record,
`
`and, you know, we were on a call with you in April and also in
`
`July, and Mr. Healy and Ancora represented that the source code
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`review needed to go forward, and we were discussing how to make
`
`11
`
`remote review possible. It was indicated that remote review
`
`12
`
`included moving the computers to a remote location and also the
`
`13
`
`possibility of accessing it via the Internet.
`
`14
`
`During this time period from April and May up until now,
`
`15
`
`we were informed by Ancora that only Mr. Martin would be
`
`16
`
`reviewing the code. And so we worked in good faith based on
`
`17
`
`the last hearing, I think in July 7th, where it was indicated
`
`18
`
`Mr. Martin was uncomfortable coming to Houston.
`
`19
`
`Based on that representation, we were working in parallel
`
`20
`
`on a protocol to enable remote review. But a gating issue
`
`21
`
`there was would our client or any of the third parties even
`
`22
`
`agree that it would be permissible? And I think our position
`
`23
`
`has been consistent, as the exhibits show, for many, many
`
`24
`
`months that in-person review is the preferred mechanism. It's
`
`25
`
`in the protective order that was agreed when the case started,
`
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`ANCORA Ex. 2002, Page 17
`
`

`

`18
`
`and this COVID situation has presented new challenges for
`
`everyone.
`
`And so in connection with that, we were given permission
`
`by LG to the extent in-person review was not permitted. And,
`
`you know, you can't take one e-mail in a vacuum. It's part of
`
`a larger negotiation with all parties, but to the extent that
`
`was possible, we would be agreeable to work out a protocol.
`
`And so we provided to them a draft protective order that had
`
`numerous provisions regarding the safety that would be
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`required. But after our last hearing, Your Honor, on July the
`
`11
`
`7th, it came to our attention that Ancora also wanted other
`
`12
`
`experts in Boston to review the code. And as Samsung's counsel
`
`13
`
`indicated, we -- we at Morgan Lewis have a Morgan Lewis office.
`
`14
`
`So we're happy to move the code to Boston, and we would
`
`15
`
`actually be amenable to negotiating even a -- now, if the
`
`16
`
`experts aren't happy with our location, a closer location to
`
`17
`
`their actual residences that they can put some parameters on so
`
`18
`
`long as it's mutually agreeable by the parties, we can
`
`19
`
`negotiate how those costs would be borne by the parties, but we
`
`20
`
`would be willing to also facilitate an in-person review which
`
`21
`
`is the preferred mechanism for review.
`
`22
`
`And so, you know, with the backdrop of in-person review
`
`23
`
`being the preferred mechanism, we also didn't want to be
`
`24
`
`accused of dragging our heels and not providing these alternate
`
`25
`
`routes to the extent that it was impossible.
`
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`ANCORA Ex. 2002, Page 18
`
`

`

`19
`
`So we worked in good faith with Ancora, and I think the
`
`exhibits consistently show that the parties have been
`
`attempting to figure out, given all of the technical challenges
`
`that are necessary for a remote review, but also the logistical
`
`and personal challenges, we've come up with some protections in
`
`a protective order, and the subject -- I was actually surprised
`
`today, Your Honor, that Mr. Healy indicated that those
`
`protections that are in place in the Qualcomm or Apple
`
`protective orders would be agreeable to them because the
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`dispute before Your Honor today in the protective order that
`
`11
`
`they submitted to you highlights the fact that those are not
`
`12
`
`the protections that they're presenting to the Court.
`
`13
`
`Mr. Healy did identify certain provisions that they would
`
`14
`
`agree to, but he failed to mention the provisions that are the
`
`15
`
`most troublesome, which include using FaceTime or some other
`
`16
`
`mechanism by which the multiple reviewers can communicate with
`
`17
`
`each other at the same time.
`
`18
`
`So it's not a situation where one expert logs on and
`
`19
`
`reviews the code. Ancora wants one expert to log on and then
`
`20
`
`provide the code to the other experts at the exact same time
`
`21
`
`simultaneously through some unsecure mechanism, FaceTime, Webex
`
`22
`
`web cam, et cetera, and, I mean, we all know that Siri and
`
`23
`
`Cortana, and, you know, all of them are listening.
`
`24
`
`So we don't know what provisions are going to be in place
`
`25
`
`to provide security at the level that the protective order was
`
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`ANCORA Ex. 2002, Page 19
`
`

`

`20
`
`intended to have. What we expected, and what I heard today Mr.
`
`Healy agree to, was that the only provision that needs to
`
`change from the protective order is that essentially a port
`
`would be open where the expert could be in one location and
`
`view code in another location. And those are the protections
`
`that I believe the Qualcomm and the Apple cases provided for,
`
`but it's not the level of amendments that Ancora's provided in
`
`the protective order that's been submitted to Your Honor.
`
`So, you know, we -- we've negotiated, I believe in good
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`faith, to attempt to get to a protocol that would be acceptable
`
`11
`
`in the event that an in-person review has not -- or could not
`
`12
`
`be achieved, but today was actually the first day that we've
`
`13
`
`heard Mr. Healy represent that none of his experts in any city
`
`14
`
`would be capable or willing to review the code in person, if we
`
`15
`
`were able to make it available near them in one of our offices,
`
`16
`
`or near them is something -- and I think LG have agreed, closer
`
`17
`
`to the experts, and we would be willing to accommodate them
`
`18
`
`with whatever reasonable protocols need to be in place to
`
`19
`
`ensure their safety.
`
`20
`
`But, you know, I confess, Your Honor, I've been in a
`
`21
`
`number of cases, and I'm sure you have seen it as well. I've
`
`22
`
`never been in a case where the protective order protections for
`
`23
`
`source code have been reduced to the level that Ancora's
`
`24
`
`provided in its amendments.
`
`25
`
`The only provisions that really need to be modified in our
`
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`ANCORA Ex. 2002, Page 20
`
`

`

`21
`
`current protective order I believe are provision R, I think
`
`11R, which says that, you know, the Internet will not be
`
`acceptable. And in 11 -- I apologize, Your Honor -- my
`
`notes -- an earlier provision in the protective order I think
`
`indicates that the -- there will be no access. The computer
`
`will have all of its ports disabled.
`
`So I think if Mr. Healy's representation to the Court is
`
`accurate as he -- the protective orders that are in place in
`
`the Qualcomm and the Apple cases with those -- those levels of
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`protections would be acceptable. I think the parties are
`
`11
`
`closer to an agreement, but that is not currently what I
`
`12
`
`believe is reflected in the amendment presented to the Court.
`
`13
`
`14
`
`So the --
`
`THE COURT: Let me hear from Mr. Healy, what he says about
`
`15
`
`that.
`
`16
`
`17
`
`MR. HEALY: Thank you, Judge. This is Mr. Healy.
`
`Your Honor, the simple answer to that is we're more than
`
`18
`
`happy to agree to the similar terms. You know, we had
`
`19
`
`negotiated with LG for multiple weeks. Again, I guess I can't
`
`20
`
`emphasize it enough. LG was the one who created the proposed
`
`21
`
`protective order amendment. We made some edits, and we can
`
`22
`
`sort of walk through those disputes. But it's their proposal,
`
`23
`
`you know. The -- Mr. -- Tom mentioned, you know, the FaceTime
`
`24
`
`as an example. LG proposed that mechanism. LG proposed that
`
`25
`
`mechanism in order to monitor our expert. And so our response
`
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`ANCORA Ex. 2002, Page 21
`
`

`

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