`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`ANCORA TECHNOLOGIES, INC.
`
`VS.
`
`LG ELECTRONICS, INC., ET AL
`
`*
`*
`*
`*
`
`September 9, 2020
`
`* *
`
` CIVIL ACTION NO. AU-20-CV-34
`SAMSUNG ELECTRONICS CO., LTD, *
` ET AL
`*
`
`BEFORE THE HONORABLE ALAN D ALBRIGHT, JUDGE PRESIDING
`TELEPHONIC DISCOVERY HEARING
`
`APPEARANCES:
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`For the Plaintiff:
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`For Defendant LG:
`
`For Defendant Samsung:
`
`Charles L. Ainsworth, Esq.
`Robert Christopher Bunt, Esq.
`Parker, Bunt & Ainsworth, P.C.
`100 East Ferguson, Suite 418
`Tyler, TX 75702
`
`Steven M. Seigel, Esq.
`Susman Godfrey L.L.P.
`1201 Third Avenue, Suite 3800
`Seattle, WA 98101
`
`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
`
`Collin W. Park, Esq.
`Morgan Lewis & Bockius, LLP
`1111 Pennsylvania Ave., N.W.
`Washington, DC 20004-2541
`
`Anupam Sharma, Esq.
`Matthew Phelps, Esq.
`Covington & Burling LLP
`3000 El Camino Real
`5 Palo Alto Square, 10th Floor
`Palo Alto, CA 94306
`
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`ANCORA Ex. 2003, Page 1
`
`
`
`2
`
`Court Reporter:
`
`Melissa Richards Smith, Esq.
`Gillam & Smith, LLP
`303 South Washington Avenue
`Marshall, TX 75670
`
`Kristie M. Davis
`United States District Court
`PO Box 20994
`Waco, Texas 76702-0994
`
`Proceedings recorded by mechanical stenography, transcript
`
`produced by computer-aided transcription.
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`ANCORA Ex. 2003, Page 2
`
`
`
`3
`
`(September 9, 2020, 10:30 a.m.)
`
`MS. MILES: Telephonic discovery hearing in Civil Action
`
`1:20-CV-34, styled Ancora Technologies, Incorporated versus LG
`
`Electronics Incorporated, and others.
`
`THE COURT: If I could hear announcements from counsel,
`
`please.
`
`MR. SEIGEL: Good morning, Your Honor. This is Steve
`
`Seigel from Susman Godfrey on behalf of plaintiff Ancora, and I
`
`believe that Charley Ainsworth and Chris Bunt are also on the
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`line.
`
`11
`
`12
`
`13
`
`THE COURT: Okay. Good to hear that.
`
`And for defendants?
`
`MR. CARTER: Good morning, Your Honor. Winn Carter for
`
`14
`
`LGE, along with Collin Park, Elizabeth Chiaviello and Tom
`
`15
`
`Davis.
`
`16
`
`17
`
`THE COURT: Very good. Thank you.
`
`Okay. I'm sorry. Was there someone else that wanted to
`
`18
`
`announce?
`
`19
`
`MR. SHARMA: Yes. Good morning, Your Honor. This is
`
`20
`
`Anupam Sharma from Covington Burling on behalf of Samsung.
`
`21
`
`Also with me is Matthew Phelps from Covington.
`
`22
`
`23
`
`THE COURT: Okay. Anybody else?
`
`MS. SMITH: Your Honor, it's Melissa Smith on behalf of
`
`24
`
`Samsung as well.
`
`25
`
`THE COURT: Thanks for being here.
`
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`ANCORA Ex. 2003, Page 3
`
`
`
`4
`
`MS. SMITH: Good morning.
`
`THE COURT: Good morning.
`
`Is that everyone?
`
`Okay. And I'm happy to jump in and take up the matters.
`
`I've got the e-mail. So I think we're all ready to go.
`
`MR. CARTER: Yes, Your Honor. So Winn Carter for LGE.
`
`As we reported in our e-mail this morning, we have
`
`responded -- or had an opportunity, and we thank you for that
`
`opportunity to speak with our clients about the three asks that
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`were first raised in the call on Thursday.
`
`11
`
`And regarding those three asks from Ancora, we have agreed
`
`12
`
`to produce a witness to discuss the e-mail practices that they
`
`13
`
`asked for with that witness being produced on or before
`
`14
`
`September the 24th I believe was the date. Obviously it will
`
`15
`
`be by a remote hearing, given the current circumstances both in
`
`16
`
`the United States and in Korea. And we've asked for Ancora's
`
`17
`
`proposal on how the logistics of the deposition will take place
`
`18
`
`and so forth. So we're awaiting those directions from Ancora.
`
`19
`
`Regarding the second ask from Ancora that was requesting
`
`20
`
`that LGE supplement its response to Ancora's contention
`
`21
`
`Interrogatory No. 13 by September the 11th, since this is a
`
`22
`
`contention interrogatory, Your Honor, and obviously fact
`
`23
`
`discovery and expert discovery is not complete -- been
`
`24
`
`completed yet, and that is several weeks away, we're still
`
`25
`
`willing to supplement based upon our current information, the
`
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`ANCORA Ex. 2003, Page 4
`
`
`
`5
`
`information that was provided in Interrogatory No. 13, and
`
`would be willing to do so by I believe the 25th of September.
`
`We also have -- and we raised this in our call with Ancora
`
`on Friday. We also have outstanding contention
`
`interrogatories, specifically one dealing with invalidity
`
`contentions, and we raised this because they did not answer
`
`that contention interrogatory. They provided a bunch of
`
`objections and said that we would discuss with you a mutual
`
`time to respond to these contention interrogatories, which we
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`understood to be for both parties. And so if they wish for us
`
`11
`
`to respond to the contention interrogatory by September 25th to
`
`12
`
`provide that, it seems only right, citing the goose-gander
`
`13
`
`rule, that by September 25th Ancora also provide its response
`
`14
`
`to that Interrogatory No. 13 dealing with invalidity
`
`15
`
`contentions. That's the proposal we made, and --
`
`16
`
`17
`
`18
`
`19
`
`THE COURT: Mr. Carter. Mr. Carter.
`
`MR. CARTER: Yes.
`
`THE COURT: This is Alan Albright.
`
`What -- I know generally speaking what the
`
`20
`
`interrogatory you're -- what specifically are you seeking at
`
`21
`
`this time for the plaintiff to add with respect to the
`
`22
`
`invalidity? If you could help me out with a little more
`
`23
`
`specificity.
`
`24
`
`MR. CARTER: Yes, sir. The Interrogatory No. 13 asks for
`
`25
`
`information concerning their position on the invalidity
`
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`ANCORA Ex. 2003, Page 5
`
`
`
`6
`
`contentions. I don't have that interrogatory in front of me at
`
`this point, but perhaps one of my colleagues can pull it up or
`
`speak to it more specifically, but the answer -- the answer
`
`that Ancora provided was basically no answer. They did not
`
`respond at all and they said that we -- because discovery's
`
`ongoing, investigation's ongoing, expert discovery, all of the
`
`issues associated with contention interrogatories, they refuse
`
`to answer. And so they have not provided any answer at all.
`
`So that's the issue that we're dealing with at this point. We
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`would like for them to provide a supplemental answer to that
`
`11
`
`interrogatory, answering the contention interrogatory if we're
`
`12
`
`in the position they have to do so as well.
`
`13
`
`THE COURT: Well, I'm not sure that this is -- help me out
`
`14
`
`here a little bit. I'm not sure that this is quite a bilateral
`
`15
`
`thing the way you're suggesting, but I'm not saying you're
`
`16
`
`wrong. I -- if I understand correctly what they -- and I'll
`
`17
`
`hear from Mr. Siegel, but my understanding of what they are
`
`18
`
`seeking in terms of discovery from you in the contention
`
`19
`
`interrogatory they want is essentially information that is in
`
`20
`
`your possession, your client's possession that they need as
`
`21
`
`opposed to a legal position which is what you want. At least I
`
`22
`
`think that's what you want. Maybe I'm not fully understanding
`
`23
`
`what it is you want with regard to their invalidity
`
`24
`
`contentions. I see them as different -- kind of different
`
`25
`
`asks, but I may be missing it, and I certainly want you to
`
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`ANCORA Ex. 2003, Page 6
`
`
`
`7
`
`explain it to me if I'm not fully understanding what it is you
`
`want. I don't see reciprocity here in this situation, but I
`
`certainly want to be fair, and if I'm missing it, you know, let
`
`me know what it is that I'm missing.
`
`MR. CARTER: Yeah. So if you look at Interrogatory -- our
`
`Interrogatory No. 13 which we attached. So what they're asking
`
`for is our contention -- let me get to it here. Their
`
`interrogatory to us says: To the extent that you contend that
`
`any limitation or step or any asserted claim is performed by an
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`entity other than you or is not attributable to you, state for
`
`11
`
`each such limitation or step.
`
`12
`
`And the way we've answered that because -- by the
`
`13
`
`phraseology of their interrogatory, we basically -- we say, we
`
`14
`
`are not -- we contend that LGE does not do those steps. We
`
`15
`
`have no contention at this time that anyone else performs those
`
`16
`
`steps. In other words, they're asking for us to say, based
`
`17
`
`upon the steps contained in the patent, who performs those
`
`18
`
`steps, and we're not taking the position at this point that any
`
`19
`
`third party performs those steps, and we've taken the position
`
`20
`
`that LGE does not perform those steps and we've outlined in our
`
`21
`
`answer specifically how we -- how we respond to that question.
`
`22
`
`THE COURT: Okay. Now, how -- I get that. Now, how is
`
`23
`
`that reciprocal in terms of your -- your -- it seems to me,
`
`24
`
`and, again, I certainly want to be as fair as I can to both
`
`25
`
`sides in terms of reciprocity here, but it seems to me that
`
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`ANCORA Ex. 2003, Page 7
`
`
`
`8
`
`you -- your -- you and your client uniquely have a factual
`
`understanding within your ability to know whether or not your
`
`clients perform the steps or not that is not the same as asking
`
`the plaintiff to inform you as a legal matter why your
`
`invalidity contentions at this time prior to the Markman are --
`
`whether your -- what their concerns are with your invalidity
`
`contentions, which seems to me to be more of a legal matter
`
`comparing your -- the art that you've cited to the art to the
`
`patents that are asserted. I don't see those still as being
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`reciprocal in terms of asking for the same kinds of
`
`11
`
`information, but help me out maybe on the -- maybe do this.
`
`12
`
`Explain to me how it is that what you're asking the plaintiff
`
`13
`
`to do is not a legal matter and it's something factual that's
`
`14
`
`within their client's understanding that shouldn't have to wait
`
`15
`
`until the Markman. Let me try it that way.
`
`16
`
`MR. CARTER: Well, I'm not -- well, we responded to a
`
`17
`
`contention interrogatory that was phrased by the plaintiffs.
`
`18
`
`And the way the interrogatory was phrased is how we responded
`
`19
`
`to it. And so we provided the information that we had that was
`
`20
`
`available to it. We're willing to supplement by September the
`
`21
`
`25th to provide additional information that's in our
`
`22
`
`possession, but we don't know what third parties have done.
`
`23
`
`Discovery hasn't been concluded. Other -- the plaintiffs have
`
`24
`
`subpoenaed documents from third parties, and we're receiving
`
`25
`
`those documents. So we don't know what other -- what third
`
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`ANCORA Ex. 2003, Page 8
`
`
`
`9
`
`parties do regarding the application of their work in
`
`connection with this patent. What we -- at this point in time
`
`what we're saying is we have no contention. We don't know what
`
`the third parties do regard -- with regard to the activities
`
`that they perform.
`
`THE COURT: Okay. Now --
`
`MR. CARTER: I'm assuming that's going to come out in
`
`discovery. I mean, that's part of the plaintiff's burden is to
`
`show those steps in -- as far as how this -- how the OTA
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`updates here infringe.
`
`11
`
`THE COURT: And is there something I've done that makes
`
`12
`
`you think that I am requiring you to go beyond what you just --
`
`13
`
`if that's your -- if that's your position -- your position with
`
`14
`
`regard to what your client does and the information they have,
`
`15
`
`have I done something that indicates that you think I'm
`
`16
`
`requiring you to do more than that at this point?
`
`17
`
`MR. CARTER: No. I think -- I think what I'm concerned
`
`18
`
`about is that you may require us to do more. In other words,
`
`19
`
`you may require us to investigate perhaps what other -- what
`
`20
`
`third parties do to prove that we do not perform these steps,
`
`21
`
`not that we -- not that the -- excuse me. To be clear, that
`
`22
`
`you may require us to investigate what third parties do in
`
`23
`
`connection with the performance of those steps when in fact
`
`24
`
`that's the plaintiff's burden to show that. That's not
`
`25
`
`information -- excuse me, Your Honor. I didn't mean to
`
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`ANCORA Ex. 2003, Page 9
`
`
`
`10
`
`interrupt you.
`
`THE COURT: No. No. No. No. No. I interrupted you.
`
`So --
`
`MR. CARTER: That's not information that -- in comparison
`
`to the steps that are contained within the patent versus what
`
`our knowledge is, we don't know at this time that information.
`
`THE COURT: Well, and I don't know -- if that's your
`
`response at this time -- well, let me hear from Mr. Siegel
`
`because I'm -- I don't know -- if Mr. Siegel is asking for me
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`to require you to give that information -- to do that
`
`11
`
`investigation at this time, let me make sure that he is asking
`
`12
`
`me to tell you to do that and then I'll hear from Mr. Siegel
`
`13
`
`why he thinks he would be entitled to have you do that at this
`
`14
`
`point.
`
`15
`
`16
`
`17
`
`MR. CARTER: Okay.
`
`MR. SEIGEL: Thank you, Your Honor. This is Mr. Siegel.
`
`I think we can -- I hopefully can clarify this a little
`
`18
`
`bit. As I explained to LG on the phone in some detail on
`
`19
`
`Friday, what we are asking LG to do is not investigate third
`
`20
`
`parties', you know, operations and provide information that is
`
`21
`
`not within their custody and control, but, rather, as we, you
`
`22
`
`know, explained in our -- or as we requested in our
`
`23
`
`Interrogatory No. 13, we asked them to explain with reference
`
`24
`
`to our operative infringement contention and our allegations
`
`25
`
`that contain -- factual material contained in those
`
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`ANCORA Ex. 2003, Page 10
`
`
`
`11
`
`contentions. And basically we have stated in those contentions
`
`that we think LG is responsible soup to nut for every factual
`
`allegation that we state in our contentions and that, as a
`
`result, LG is responsible for directly infringing the methods
`
`that are asserted in this case.
`
`LG has told us that they believe that third parties are
`
`somehow involved, and what we are asking LG to do is with a
`
`great degree of specificity with reference to our operative
`
`contentions tell us which of the factual allegations we have
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`asserted are not attributable to LG but rather are performed by
`
`11
`
`some third party.
`
`12
`
`Now, we understand that LG is taking the position that it
`
`13
`
`doesn't know the details about those third parties'
`
`14
`
`involvement, but what we believe we are entitled to know now
`
`15
`
`is, given that they have our infringement contentions, looking
`
`16
`
`at the factual information that we provided to them that we
`
`17
`
`used to say, here's how we think you infringe, which parts of
`
`18
`
`those specific functions, processes or steps are -- you know,
`
`19
`
`did we mistakenly say, LG, you perform, rather than, you know,
`
`20
`
`and have that come back and tell us actually in fact LG doesn't
`
`21
`
`do that. That's attributable to a third party. So that's what
`
`22
`
`we're asking for here is for LG to articulate their
`
`23
`
`noninfringement dissent to the extent that it depends upon some
`
`24
`
`third party performing a step that we've alleged as
`
`25
`
`attributable to LG.
`
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`ANCORA Ex. 2003, Page 11
`
`
`
`12
`
`MR. CARTER: Your Honor, if I might respond to that.
`
`THE COURT: Let me -- Mr. Carter, keep whatever you're
`
`going to say in your forefront of your mind because I need to
`
`ask Mr. Siegel something real quick.
`
`So, Mr. Siegel, why is it that you would be -- typically I
`
`don't allow a lot of discovery prior to the Markman because I
`
`like getting -- how does the information that you're seeking --
`
`I get why you want it. You're going to need it. And I also
`
`know Mr. Carter is going to have -- I'm going to hear from Mr.
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`Carter about whose burden is whose, but why should I allow this
`
`11
`
`discovery prior to the Markman? How does it impact whatever
`
`12
`
`claim construction work I'm going to be doing? If there's a
`
`13
`
`need for it because you are concerned that you're going to --
`
`14
`
`it's going to be tough for you to get the discovery done within
`
`15
`
`the time limits that you'll have in trial without getting a
`
`16
`
`start now, maybe that's it, but ordinarily this is not
`
`17
`
`discovery that I would allow to advance unless it directly
`
`18
`
`relates to the claim construction process.
`
`19
`
`MR. SEIGEL: Certainly, Your Honor. And I think I should
`
`20
`
`clarify this. We've already had claim construction in this
`
`21
`
`case and we've received your order.
`
`22
`
`23
`
`THE COURT: Okay.
`
`MR. SEIGEL: So but I did want to just briefly kind of
`
`24
`
`remind the Court that all of these issues and these requests
`
`25
`
`that we're speaking about were a result of the Court's prior
`
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`ANCORA Ex. 2003, Page 12
`
`
`
`13
`
`order that if LG was going to take the position that third
`
`parties were involved in these steps and refused to stipulate
`
`to controlling or directing those third parties' involvement in
`
`delivering software updates to LG phones, that it was required
`
`to produce e-mail custodians to search those e-mails so that we
`
`could get evidence of this. And then LG subsequently informed
`
`us that all of the LG -- the e-mails that we were seeking had
`
`been lost or destroyed in some transition to cloud computing.
`
`So these -- all of these requests really stem from that because
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`we're looking to get at the evidence and information that LG
`
`11
`
`has told us is destroyed or lost. So we're trying to find
`
`12
`
`other ways of getting at that information.
`
`13
`
`THE COURT: Okay. I'm sorry. For some reason I
`
`14
`
`thought -- I was tracking incorrectly where this case was at.
`
`15
`
`So now -- but that also means I'm more confused in each
`
`16
`
`direction. I understand fully now why the plaintiff wants what
`
`17
`
`they want, but I don't understand why the plaintiff has not
`
`18
`
`maybe updated the invalidity contentions. So now that -- let
`
`19
`
`me get -- now let me get restarted here. I'll start with Mr.
`
`20
`
`Carter and I'll hear from Mr. Carter as to why his client is
`
`21
`
`unwilling to answer discovery. I've got whose burden it is,
`
`22
`
`but it sounds to me like the interrogatories that plaintiff has
`
`23
`
`sent you are appropriate, and then I'll hear from Mr. Carter as
`
`24
`
`to why I think I -- and if you want to add anything as to why
`
`25
`
`the plaintiff's response on invalidity contentions is
`
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`ANCORA Ex. 2003, Page 13
`
`
`
`14
`
`insufficient and I'll hear from Mr. Siegel in response to that.
`
`So, Mr. Carter, the interrogatories sound logical to me if
`
`we're at this point in the litigation. So help me out why you
`
`should not have to answer.
`
`MR. CARTER: So Mr. -- it's not a question of not
`
`answering, Judge. We have answered. We've provided a detailed
`
`answer to the interrogatory. In fact, Mr. Siegel pointed out
`
`to some language in our answer, but let me point you to other
`
`language in our answer, and it falls on Page 9, and it's
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`consistent with all of the steps that Page 9 of the answers to
`
`11
`
`interrogatories that we attached. For instance, when you say
`
`12
`
`that LGE does not contend -- LGE does not contend that any
`
`13
`
`other person or entities perform this step -- the step that is
`
`14
`
`being discussed -- any of the accused products in the United
`
`15
`
`States during the time period.
`
`16
`
`So our contention is is that LGE does not contend that any
`
`17
`
`third party perform this step. It's not that we're contending
`
`18
`
`that a third party did perform this step. However, if the jury
`
`19
`
`does determine or if somebody does determine that a step was
`
`20
`
`performed in the United States, then it was performed by some
`
`21
`
`third party, not us. Not LGE. So that's -- that's where we
`
`22
`
`are. But we're saying that we contend that we -- that no third
`
`23
`
`party performs these steps. Saying it backwards. So Mr.
`
`24
`
`Siegel wants to say -- wants to get discovery from us about a
`
`25
`
`contention that we're not making.
`
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`ANCORA Ex. 2003, Page 14
`
`
`
`15
`
`THE COURT: Okay. Mr. Siegel -- Mr. Siegel, tell me --
`
`you know, occasionally I get this where I'm not sure what to
`
`do. Tell me exactly what it is that you want -- if you could
`
`draft my order, tell me what it is you want me to tell Mr.
`
`Carter to do and his client to do, and we'll go from there.
`
`MR. SEIGEL: Thank you, Your Honor. Certainly. What I
`
`think the disconnect here and what I think would be in the
`
`order is that we're not asking LG to make a contention about
`
`the claim limitations as those limitations are phrased in the
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`patent. What we're asking LG to do is make -- take a position
`
`11
`
`on the factual allegations that we've included in our
`
`12
`
`infringement contentions. For instance, various screenshots
`
`13
`
`and, you know, statements by LG about how its phones update
`
`14
`
`their own software and firmware using the over the air process.
`
`15
`
`And so to the extent that LG is saying, we understand that
`
`16
`
`you've taken that factual information from publicly available
`
`17
`
`sources and you're saying that we view that, well, at least a
`
`18
`
`portion of that is not done by us and the portion that's not
`
`19
`
`done by us is this. And so it's really looking at it from the
`
`20
`
`perspective of our factual contentions. We want LG to tell us
`
`21
`
`which portions with specificity of our factual contentions they
`
`22
`
`are saying they do not do. So this is without regards to the
`
`23
`
`claim language and the language of the patent. We're really
`
`24
`
`just asking them to tell us what factual material we've
`
`25
`
`asserted that LG does they are now claiming they do not do.
`
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`ANCORA Ex. 2003, Page 15
`
`
`
`16
`
`THE COURT: Mr. Carter, that -- the way Mr. Siegel phrased
`
`it made total sense to me.
`
`MR. CARTER: Well, then he should send an interrogatory
`
`which would then be signed by our client and verified that asks
`
`that information. The Interrogatory No. 13 that we're fighting
`
`about today does not ask for that information. And so the best
`
`way, in my view, Your Honor, would be for an interrogatory to
`
`be sent that -- by the plaintiffs to seek that type of
`
`information and then we'll deal with it. But we can't -- he's
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`now asking us to restructure an interrogatory that's specific
`
`11
`
`in one degree and now to move it into another hemisphere.
`
`12
`
`13
`
`14
`
`THE COURT: Okay. Fair enough.
`
`Mr. Siegel, why don't we --
`
`MR. SEIGEL: Thank you. I just really want to clarify
`
`15
`
`that our interrogatory is actually phrased exactly how I just
`
`16
`
`described it, and I will quote directly. Quote -- this is the
`
`17
`
`Interrogatory No. 13: To the extent that you contend that any
`
`18
`
`limitation or step of any asserted claim as alleged in Ancora's
`
`19
`
`operative infringement contentions is performed by an entity
`
`20
`
`other than you are not attributable to you, please explain...
`
`21
`
`So I do want to state that this is actually the very
`
`22
`
`request that we issued. If LG was confused about it or had
`
`23
`
`some question, they were more than able to ask us for
`
`24
`
`clarifying information, but they didn't do so, and so that's
`
`25
`
`why we're asking for this information now.
`
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`ANCORA Ex. 2003, Page 16
`
`
`
`17
`
`MR. CARTER: And, Your Honor, Winn Carter again.
`
`The operative phrase there is "to the extent that you
`
`contend." In the interrogatories I pointed out in my initial
`
`statement LGE does not contend that a third party performs any
`
`of those steps. And so that's where we are. And if there's
`
`some way that --
`
`THE COURT: Mr. -- let me try this. Mr. Seigel, are you
`
`able -- I think I've got the nub of the -- are you able to
`
`modify your interrogatory to take out the, do you contend,
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`which I get, maybe more form over substance, but that appears
`
`11
`
`to be what Mr. Carter is concerned with on behalf of his
`
`12
`
`client. Are you able to restructure your interrogatory to
`
`13
`
`leave out that you contend -- maybe you can say whatever words
`
`14
`
`you want, that you deny, however you want to do it, but I
`
`15
`
`understand -- but if you -- can you edit your interrogatory and
`
`16
`
`resend it to Mr. Carter and I can give him ten days to get you
`
`17
`
`an answer?
`
`18
`
`MR. SEIGEL: Certainly. We can certainly do that, Your
`
`19
`
`Honor.
`
`20
`
`THE COURT: Okay. And that's -- and that's ten real world
`
`21
`
`days.
`
`22
`
`And so now let's turn to Mr. Carter's concern that the
`
`23
`
`plaintiff has not responded to its interrogatory with respect
`
`24
`
`to the invalidity contentions.
`
`25
`
`Mr. Carter, if you would remind me exactly what your
`
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`ANCORA Ex. 2003, Page 17
`
`
`
`18
`
`interrogatory says.
`
`MR. CARTER: Yes, Judge. We were asking for the facts
`
`that were supporting the invalidity contentions or disputing
`
`the invalidity contentions. Unfortunately, I don't have that
`
`interrogatory in front of me.
`
`THE COURT: Well, and, Mr. Carter, I think that's -- I
`
`think that's my problem is typically I don't know -- and as
`
`I've said a thousand times, no one allowed me within a thousand
`
`feet of drafting invalidity contentions other than maybe for
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`grammar purposes, but that being said, I think I do understand
`
`11
`
`what an invalidity contention is, which is that it's not, in my
`
`12
`
`opinion, a factual matter as much as a legal matter which is
`
`13
`
`that you in response to the '123 patent that the plaintiff is
`
`14
`
`asserting, you have found the Smith patent that anticipates it
`
`15
`
`or in combination with someone else makes it obvious, and I
`
`16
`
`don't see that as a factual matter, and maybe I'm -- again,
`
`17
`
`maybe it's the English that is my problem, but to me it is --
`
`18
`
`you know, that it's -- the invalidity contentions show that the
`
`19
`
`art that is being asserted reads on art that the patents are
`
`20
`
`being asserted. I don't see that as a factual matter as much
`
`21
`
`as it's something for experts to opine on, and I don't,
`
`22
`
`generally speaking, see that as something that's well responded
`
`23
`
`to in the form of an interrogatory as much as I do in the form
`
`24
`
`of an expert report, and that's why I'm not necessarily
`
`25
`
`tracking on your request for -- for what facts there are that
`
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`ANCORA Ex. 2003, Page 18
`
`
`
`19
`
`you want the plaintiff to give you with respect to why they may
`
`disagree with your invalidity contentions. So if you could
`
`explain to me, that would be great.
`
`MR. CARTER: I understand, Your Honor, and if that becomes
`
`an issue further, we'll -- if this interrogatory becomes an
`
`issue in the future -- the main thing was the position that
`
`Ancora was taking that these types of contention
`
`interrogatories were premature, and that's the reason I raised
`
`it. But we'll come back to the Court if we have an issue with
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`that.
`
`11
`
`THE COURT: Mr. Carter, I want to make absolutely clear.
`
`12
`
`I'm very concerned. I always want y'all to leave these
`
`13
`
`hearings with -- feeling that I've been fair to both sides.
`
`14
`
`And so if you get to the point where you think that the
`
`15
`
`plaintiff is not answering your discovery, I'm going to be as
`
`16
`
`equally strict that plaintiffs respond to your discovery as I
`
`17
`
`would be in the other direction. And with respect -- I will
`
`18
`
`say, generally speaking, with respect to this one issue, I
`
`19
`
`think it's much better dealt with in the expert reports than
`
`20
`
`asking an interrogatory about it because it just seems to me to
`
`21
`
`be something that an expert is going to have to opine about
`
`22
`
`with respect to why the art that you've asserted as
`
`23
`
`invalidating the patents that are in the case read on or don't
`
`24
`
`read on. Essentially the interrogatory response would just be
`
`25
`
`written by either a lawyer helping the expert or the expert.
`
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`ANCORA Ex. 2003, Page 19
`
`
`
`20
`
`So if you feel like you need help in discovery, that's fine.
`
`If you feel like the discovery -- the expert reports you get
`
`from the plaintiff are inadequate, then you can certainly come
`
`to the Court with that as well.
`
`MR. CARTER: Thank you, Your Honor. I understand.
`
`THE COURT: And what else do I need to take up with you
`
`guys?
`
`MR. CARTER: There was a third ask, Your Honor.
`
`THE COURT: Okay.
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`MR. CARTER: And it dealt with obtaining information from
`
`11
`
`LG's CNS Korea, and the plaintiff had asked us to obtain
`
`12
`
`documents from this other entity, separate entity, LG CNS
`
`13
`
`Korea. And we -- as you may recall, we drafted an e-mail based
`
`14
`
`upon what Ancora wanted us to ask them for. We sent that over
`
`15
`
`to LG CNS. We've been told -- we've received word that LG CNS
`
`16
`
`declines to follow that request. We're investigating what else
`
`17
`
`we can do, but at this point we don't have the ability to
`
`18
`
`compel LG CNS to do anything.
`
`19
`
`20
`
`THE COURT: Okay. Mr. Siegel?
`
`MR. SEIGEL: Thank you, Your Honor. We -- as we explained
`
`21
`
`to LG, you know, LG CNS is a wholly owned subsidiary of the LG
`
`22
`
`corporation and it also has a contractual relationship with LG.
`
`23
`
`So we find it hard to believe that there aren't ways to, you
`
`24
`
`know, cajole these e-mails out of LG CNS, but, you know, taking
`
`25
`
`them at their word, you know, we understand LG is taking the
`
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`ANCORA Ex. 2003, Page 20
`
`
`
`21
`
`position that it -- really its hands are tied. You know, I
`
`think what this ultimately means for us is that we're going to
`
`have to go through the Hague to obtain these e-mails from this
`
`LG subsidiary, and we can do so, but it may mean that we're
`
`going to have, you know, certain amounts of discovery that, you
`
`know, we'll have to see how this works out just with regards to
`
`the close of fact discovery and whether we're able to cure what
`
`we need before that time.
`
`THE COURT: Well, Mr. Siegel, one of the great things
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`about this job in doing as much intellectual property work as I
`
`11
`
`get to do, one of the great things is it's rare that a lawyer
`
`12
`
`ever needs my advice on anything because the level of lawyering
`
`13
`
`is so exceptional. So I try never to do that, but I am --
`
`14
`
`what your -- my only concern here is keeping this case on track
`
`15
`
`to get to trial and any delay that this might cause me in my
`
`16
`
`ability to keep this case on track. So it certainly -- if --
`
`17
`
`this is for everyone. I would be extremely unhappy if it were
`
`18
`
`to be determined later that any of the defendants that are
`
`19
`
`in -- are in the case have the ability to obtain the documents
`
`20
`
`from LG CNS more quickly or without as muc