Case 1:20-cv-00034-ADA Document 41 Filed 02/10/20 Page 1 of 20
`
`1
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`ANCORA TECHNOLOGIES, INC.
`
`VS.
`
`February 7, 2020
`
`
`LG ELECTRONICS, INC., ET AL
`
`*
`*
`*
`*
`
`*
`* 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
`
`For Defendant LG:
`
`18
`
`For Defendant Samsung:
`
`Charles L. Ainsworth, Esq.
`Parker, Bunt & Ainsworth, P.C.
`100 East Ferguson, Suite 418
`Tyler, TX 75702
`
`Andres Healy, Esq.
`Steven M. Seigel, Esq.
`Susman Godfrey L.L.P.
`1201 Third Avenue, Suite 3800
`Seattle, WA 98101
`
`Elizabeth M. Chiaviello, Esq.
`Morgan Lewis and Bockius LLP
`1000 Louisiana Street, Suite 4000
`Houston, TX 77002
`
`Melissa Richards Smith, Esq.
`Gillam and Smith, LLP
`303 South Washington Avenue
`Marshall, TX 75670
`
`Jared Frisch, Esq.
`Covington & Burling LLP
`One CityCenter, 850 Tenth Street, NW
`Washington, DC 20001-4956
`
`Court Reporter:
`
`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.
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`
`
`1
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`ANCORA TECHNOLOGIES, INC.
`
`VS.
`
`February 7, 2020
`
`
`LG ELECTRONICS, INC., ET AL
`
`*
`*
`*
`*
`
`*
`* 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
`
`For Defendant LG:
`
`18
`
`For Defendant Samsung:
`
`Charles L. Ainsworth, Esq.
`Parker, Bunt & Ainsworth, P.C.
`100 East Ferguson, Suite 418
`Tyler, TX 75702
`
`Andres Healy, Esq.
`Steven M. Seigel, Esq.
`Susman Godfrey L.L.P.
`1201 Third Avenue, Suite 3800
`Seattle, WA 98101
`
`Elizabeth M. Chiaviello, Esq.
`Morgan Lewis and Bockius LLP
`1000 Louisiana Street, Suite 4000
`Houston, TX 77002
`
`Melissa Richards Smith, Esq.
`Gillam and Smith, LLP
`303 South Washington Avenue
`Marshall, TX 75670
`
`Jared Frisch, Esq.
`Covington & Burling LLP
`One CityCenter, 850 Tenth Street, NW
`Washington, DC 20001-4956
`
`Court Reporter:
`
`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.
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`
`
`Case 1:20-cv-00034-ADA Document 41 Filed 02/10/20 Page 2 of 20
`
`2
`
`(February 7, 2020, 3:00 p.m.)
`
`THE COURT: Good morning. It's Alan Albright.
`
`MS. MILES: Hi, Judge. It's Suzanne.
`
`MR. AINSWORTH: Hello, Judge Albright.
`
`THE COURT: Good afternoon.
`
`MR. AINSWORTH: This is Charley Ainsworth and Andres Healy
`
`for the plaintiff Ancora.
`
`THE COURT: Good afternoon.
`
`MR. FRISCH: Good afternoon. You have Jared Frisch of
`
`1 2 3 4 5 6 7 8 9
`
`03:00
`
`03:00
`
`03:00
`
`03:00
`
`03:00
`
`03:00
`
`03:00
`
`03:00
`
`03:00
`
`03:01
`
`10
`
`Covington & Burling for defendant Samsung.
`
`03:01
`
`11
`
`THE COURT: Okay. Anyone else that is going to be
`
`03:01
`
`12
`
`talking?
`
`03:01
`
`13
`
`MS. CHIAVIELLO: Good afternoon, Your Honor. This is
`
`03:01
`
`14
`
`Elizabeth Chiaviello from Morgan Lewis on behalf of LG.
`
`03:01
`
`15
`
`THE COURT: Okay. Good afternoon to you.
`
`03:01
`
`16
`
`Anyone else?
`
`03:01
`
`17
`
`Okay. I'm not sure why I'm here, but I'm happy to help.
`
`03:01
`
`18
`
`Whoever is going to start, please feel free to go.
`
`03:01
`
`19
`
`MR. HEALY: Thank you, Your Honor. This is Andres Healy
`
`03:01
`
`20
`
`of Susman Godfrey on behalf of the plaintiffs. I'm happy to
`
`03:01
`
`21
`
`report that we reached agreement with defendant on all but one
`
`03:01
`
`22
`
`issue, and that one issue is what we're hoping to get Your
`
`03:01
`
`23
`
`Honor's guidance on today.
`
`03:01
`
`24
`
`THE COURT: Okay.
`
`03:01
`
`25
`
`MR. HEALY: The issue is that the number of pages of
`
`
`
`Case 1:20-cv-00034-ADA Document 41 Filed 02/10/20 Page 3 of 20
`
`3
`
`source code that plaintiffs -- I guess either parties would be
`
`entitled --
`
`THE COURT: Okay.
`
`MR. HEALY: And I apologize. I'm getting a little bit of
`
`feedback. So hopefully Your Honor can hear me.
`
`THE REPORTER: This is Kristie. I'm having a hard time
`
`hearing you. I'm the court reporter.
`
`(Brief off-the-record discussion.)
`
`MR. HEALY: Your Honor, plaintiff's position on the sole
`
`1 2 3 4 5 6 7 8 9
`
`03:01
`
`03:01
`
`03:01
`
`03:02
`
`03:02
`
`10
`
`issue in dispute is simple. We have received from Mr. Albright
`
`03:02
`
`11
`
`what we understand to be the Court's model protective order or
`
`03:02
`
`12
`
`default protective order, and plaintiff's preference is to
`
`03:02
`
`13
`
`stick to the Court's default. That provides that we are
`
`03:03
`
`14
`
`entitled, or I guess any party is entitled to 250 pages -- to
`
`03:03
`
`15
`
`print 250 pages per accused architecture. That's what we'd
`
`03:03
`
`16
`
`prefer to stick with. Defendant's position is they'd like to
`
`03:03
`
`17
`
`change that language and instead limit plaintiffs to 250 pages
`
`03:03
`
`18
`
`per chip set vendor.
`
`03:03
`
`19
`
`So what that effectively means is that, if of the hundreds
`
`03:03
`
`20
`
`of products at issue in this case, if they're all, for example,
`
`03:03
`
`21
`
`equipped with a Qualcomm chip set, that we would be limited to
`
`03:03
`
`22
`
`250 pages of printed code across all those products regardless
`
`03:03
`
`23
`
`of whether they actually include different code, different
`
`03:03
`
`24
`
`functionality or entirely different products.
`
`03:03
`
`25
`
`And so just very simply, Your Honor, we have two reasons
`
`
`
`Case 1:20-cv-00034-ADA Document 41 Filed 02/10/20 Page 4 of 20
`
`4
`
`why we ask the Court to reject defendants' request to depart
`
`from the default. Number one, as plaintiffs have explained to
`
`defendant, we understand the Court's limit of per accused
`
`architecture to take into account the fact that different
`
`products have different codes. As a result, we've told them,
`
`look. If two or three or a hundred products all have the same
`
`relevant code, we understand that the Court's default limits us
`
`to 250 pages across all those products because they share the
`
`same relevant architecture and code. We have no issue with
`
`1 2 3 4 5 6 7 8 9
`
`03:03
`
`03:03
`
`03:03
`
`03:04
`
`03:04
`
`03:04
`
`03:04
`
`03:04
`
`03:04
`
`03:04
`
`10
`
`that. Frankly, we hope that's the case. If all the code is
`
`03:04
`
`11
`
`the same, that makes our job a lot easier, and we frankly have
`
`03:04
`
`12
`
`no interest in reviewing, much less printing duplicative code.
`
`03:04
`
`13
`
`But defendants have told us that the code is likely not
`
`03:04
`
`14
`
`the same, that different products and different chip sets may
`
`03:04
`
`15
`
`have different code. And that leads me to number two, Your
`
`03:04
`
`16
`
`Honor, is defendants also told us that the code is going to be
`
`03:04
`
`17
`
`the best source of proof in this case. In fact, Samsung's
`
`03:04
`
`18
`
`counsel told us during the meet and confer process that there's
`
`03:05
`
`19
`
`not a whole lot of technical documents that go into the details
`
`03:05
`
`20
`
`of the functionality at issue and that they think that we're
`
`03:05
`
`21
`
`going to have to get those details from the code.
`
`03:05
`
`22
`
`So to limit us to 250 pages of code across so many
`
`03:05
`
`23
`
`different products, so many different chip sets seems to us to
`
`03:05
`
`24
`
`be an unreasonable limitation, and we prefer to remain with
`
`03:05
`
`25
`
`what the Court has established as a -- rule.
`
`
`
`Case 1:20-cv-00034-ADA Document 41 Filed 02/10/20 Page 5 of 20
`
`5
`
`Unless the Court has any questions, that's my -- I'm done
`
`for now, Your Honor.
`
`THE COURT: Okie-dokie.
`
`MR. FRISCH: Your Honor, if I may, this is Jared Frisch
`
`from Covington for defendant Samsung.
`
`THE COURT: Yes, sir.
`
`MR. FRISCH: Yes. So to just address a few of those
`
`points, you know, we do think there is going to be, you know,
`
`source code that needs to be produced, and we do think that
`
`1 2 3 4 5 6 7 8 9
`
`03:05
`
`03:05
`
`03:05
`
`03:05
`
`03:05
`
`03:05
`
`03:05
`
`03:05
`
`03:05
`
`03:05
`
`10
`
`it's going to be relevant to the accusations that plaintiffs
`
`03:06
`
`11
`
`have made.
`
`03:06
`
`12
`
`The issues that we see, Your Honor, with the language that
`
`03:06
`
`13
`
`Ancora is asking for is that in the present context, we think
`
`03:06
`
`14
`
`of that kind of giving Ancora free reign and the real upper
`
`03:06
`
`15
`
`limit on the amount of code that's going to be printed. And
`
`03:06
`
`16
`
`what we would like in the present instance is just some sort of
`
`03:06
`
`17
`
`clarity on the presumptive limit for the time being.
`
`03:06
`
`18
`
`Now, as we have said to Ancora a few times in meet and
`
`03:06
`
`19
`
`confers, we'd be happy, you know, after they've reviewed the
`
`03:06
`
`20
`
`code to discuss any reasonable increases in the number of pages
`
`03:06
`
`21
`
`that would be necessary. But we're not sure right now what's
`
`03:06
`
`22
`
`really being staged as the number of accused architectures.
`
`03:06
`
`23
`
`As Mr. Healy, I think, stated, there's hundreds of accused
`
`03:06
`
`24
`
`products in these cases, the two cases. In the infringement
`
`03:06
`
`25
`
`contentions we've only received charts -- you know, one set of
`
`
`
`Case 1:20-cv-00034-ADA Document 41 Filed 02/10/20 Page 6 of 20
`
`6
`
`charts for mobile devices, one set of charts for television.
`
`We had originally said, well, maybe it made sense to give
`
`you 250 pages of source code for the televisions and 250 pages
`
`of source code for the mobile devices. Our understanding is
`
`that they believe that there's more than just those two accused
`
`architectures and that they probably lie somewhere in between
`
`that set of sequence, the number of accused products.
`
`But it's not clear to us how many they believe there are
`
`and essentially what that multiplier is for the 250 pages.
`
`1 2 3 4 5 6 7 8 9
`
`03:07
`
`03:07
`
`03:07
`
`03:07
`
`03:07
`
`03:07
`
`03:07
`
`03:07
`
`03:07
`
`03:07
`
`10
`
`That's why we then came back with the offer that Mr. Healy
`
`03:07
`
`11
`
`discussed that, well, maybe it makes sense for us to give
`
`03:07
`
`12
`
`250 pages per chip set vendor.
`
`03:07
`
`13
`
`And the reason that's important, Your Honor, is that there
`
`03:07
`
`14
`
`are third parties who have code that's going to be implicated
`
`03:07
`
`15
`
`in this case. And we are going to need to receive permission
`
`03:07
`
`16
`
`from them in order to produce their code. And we've already
`
`03:08
`
`17
`
`started that process of reaching out to them; however, as you
`
`03:08
`
`18
`
`can imagine, they want to see a PO, and they're going to want
`
`03:08
`
`19
`
`clarity on this issue as well.
`
`03:08
`
`20
`
`So that's why we're trying to find kind of an upper bounds
`
`03:08
`
`21
`
`here for the interim of how much code can be printed, with the
`
`03:08
`
`22
`
`understanding, of course, that the parties could work together
`
`03:08
`
`23
`
`if necessary to provide more code later.
`
`03:08
`
`24
`
`THE COURT: Anyone else?
`
`03:08
`
`25
`
`MR. HEALY: Your Honor, this is Mr. Healy. I'm happy to
`
`
`
`Case 1:20-cv-00034-ADA Document 41 Filed 02/10/20 Page 7 of 20
`
`7
`
`respond, but I defer to LG's counsel if they have anything to
`
`say in the interim.
`
`MS. CHIAVIELLO: This is Elizabeth Chiaviello for LG.
`
`We're aligned with Samsung on this issue.
`
`THE COURT: Okay. And I'm happy to hear again from the
`
`plaintiff.
`
`MR. HEALY: Thank you, Your Honor. This is Mr. Healy,
`
`Susman Godfrey, on behalf of the plaintiff. I just want to
`
`briefly respond to two points. Number one, we believe that the
`
`1 2 3 4 5 6 7 8 9
`
`03:08
`
`03:08
`
`03:08
`
`03:08
`
`03:08
`
`03:08
`
`03:08
`
`03:08
`
`03:08
`
`03:08
`
`10
`
`Court's default does provide the objectives clarity that
`
`03:08
`
`11
`
`defendants state that they're seeking. The requirement is per
`
`03:09
`
`12
`
`accused architecture. We've explained to defendants, and I'm
`
`03:09
`
`13
`
`happy to put it on the record now again, that what we
`
`03:09
`
`14
`
`understand that to be is per relevant code base.
`
`03:09
`
`15
`
`You know, again, if the two products share the same code,
`
`03:09
`
`16
`
`that's one accused architecture. There's no need for us to
`
`03:09
`
`17
`
`double up on pages for what is effectively identical code. If
`
`03:09
`
`18
`
`multiple products have the same chip set vendor and those chip
`
`03:09
`
`19
`
`sets also have the same code, again, we don't need duplicative
`
`03:09
`
`20
`
`codes. But the tying the number of pages to the chip set
`
`03:09
`
`21
`
`vendor has no correlation to what that code actually is, has no
`
`03:09
`
`22
`
`correlation to the distinctions between the code, and it's
`
`03:09
`
`23
`
`really just an arbitrary number -- an arbitrary measuring
`
`03:09
`
`24
`
`stick.
`
`03:09
`
`25
`
`We've told defendants, and we're happy to say it to them
`
`
`
`Case 1:20-cv-00034-ADA Document 41 Filed 02/10/20 Page 8 of 20
`
`8
`
`again, if two versions of a product share the same code, then
`
`that's one architecture. That's an objective measure. And
`
`again, I frankly am uninterested in differences in code that
`
`aren't related to our architecture. We provided, you know,
`
`hundreds of pages of claim charts. I don't think there's any
`
`real dispute as to what the accused functionality is.
`
`And, you know, our understanding of the Court's default
`
`and what we're happy to agree to is that if the code is the
`
`same, then there's no need for duplication.
`
`1 2 3 4 5 6 7 8 9
`
`03:09
`
`03:09
`
`03:09
`
`03:10
`
`03:10
`
`03:10
`
`03:10
`
`03:10
`
`03:10
`
`03:10
`
`10
`
`THE COURT: Well, let me tell you guys how I see the
`
`03:10
`
`11
`
`world, which I guess is important to you. You know, the
`
`03:10
`
`12
`
`limitation of pages is obviously to make sure that the LG's and
`
`03:10
`
`13
`
`Samsung's and Qualcomm and other third parties of the world who
`
`03:10
`
`14
`
`are already skitzy about -- I'm not sure how -- let me repeat
`
`03:10
`
`15
`
`that because I'm not sure my court reporter can put down
`
`03:10
`
`16
`
`"skitzy," but who are already concerned about y'all getting one
`
`03:10
`
`17
`
`page of it and leaving. You know, they feel like there has to
`
`03:11
`
`18
`
`be a limit, and I get that.
`
`03:11
`
`19
`
`And so the 250 is a truly, truly arbitrary effort to, you
`
`03:11
`
`20
`
`know, get plaintiffs enough and keep companies from worrying
`
`03:11
`
`21
`
`it's too much. And so it's very arbitrary.
`
`03:11
`
`22
`
`So let me start with the plaintiff here. If I were to say
`
`03:11
`
`23
`
`it's 250 pages per architecture, would that work for you?
`
`03:11
`
`24
`
`MR. HEALY: Per architecture, Your Honor?
`
`03:11
`
`25
`
`THE COURT: Yes, sir.
`
`
`
`Case 1:20-cv-00034-ADA Document 41 Filed 02/10/20 Page 9 of 20
`
`9
`
`MR. HEALY: Yes. We're more than happy with the Court's
`
`default which you just expressed, Your Honor.
`
`THE COURT: Well, I thought that was -- and maybe I missed
`
`it. Was -- and so it's the defendants that want 250 per chip?
`
`And is that the limitation here?
`
`MR. FRISCH: Yes, Your Honor.
`
`THE COURT: Okay. Okay. So let me start over. Let me
`
`put this burden on -- let me put the burden on the defendants.
`
`Let me see -- let me just start off with this. What is it that
`
`1 2 3 4 5 6 7 8 9
`
`03:11
`
`03:11
`
`03:11
`
`03:11
`
`03:11
`
`03:11
`
`03:11
`
`03:11
`
`03:12
`
`03:12
`
`10
`
`the defendant thinks would be -- what would you guys want it to
`
`03:12
`
`11
`
`be?
`
`03:12
`
`12
`
`MR. FRISCH: So the last offer that we had made, Your
`
`03:12
`
`13
`
`Honor, was that we would allow 250 pages to be printed per
`
`03:12
`
`14
`
`vendor that's providing chip sets in the accused product, under
`
`03:12
`
`15
`
`the theory that, you know, the code from a particular vendor
`
`03:12
`
`16
`
`would likely be very similar.
`
`03:12
`
`17
`
`THE COURT: Okay. Now, let me -- so let me ask you this,
`
`03:12
`
`18
`
`because you're concerned that you're the one who's probably
`
`03:12
`
`19
`
`going to be dealing with the third parties. Is it -- is it the
`
`03:12
`
`20
`
`defendant that's going to be dealing with a third-party vendor
`
`03:12
`
`21
`
`to make arrangements to get the source code, or is the
`
`03:12
`
`22
`
`plaintiff going to be working directly with the third-party
`
`03:12
`
`23
`
`vendor?
`
`03:12
`
`24
`
`MR. FRISCH: Your Honor, I think it may depend on the
`
`03:12
`
`25
`
`circumstances. In the present circumstances, at least for
`
`
`
`Case 1:20-cv-00034-ADA Document 41 Filed 02/10/20 Page 10 of 20
`
`10
`
`Samsung, we have already collected certain code that has
`
`third-party code in it, and we have already started working
`
`with the third parties to try to get, you know, permission.
`
`And they would like to see it. So we've been talking to them
`
`about that.
`
`There may be those that come from third parties that we
`
`don't have in our possession that'll come into play in this
`
`case later on. At that point I imagine plaintiffs might be
`
`reaching out to them.
`
`1 2 3 4 5 6 7 8 9
`
`03:12
`
`03:13
`
`03:13
`
`03:13
`
`03:13
`
`03:13
`
`03:13
`
`03:13
`
`03:13
`
`03:13
`
`10
`
`THE COURT: So if you tell -- here's my concern: So if
`
`03:13
`
`11
`
`you tell third-party X that it's going to be 250 pages per chip
`
`03:13
`
`12
`
`and the plaintiff needs more, what do we do?
`
`03:13
`
`13
`
`MR. FRISCH: I think -- so for a particular party, if they
`
`03:13
`
`14
`
`say that they need more from that vendor, I think we would have
`
`03:13
`
`15
`
`to go back to that vendor to discuss. I'm concerned that in
`
`03:13
`
`16
`
`the present instance they might -- you know, once we put the PO
`
`03:13
`
`17
`
`in, if it's too ambiguous at this -- they're going to try to
`
`03:13
`
`18
`
`come in with lots of different amendments, which is, you know,
`
`03:13
`
`19
`
`a possibility either way. But we're trying to get clarity for
`
`03:14
`
`20
`
`them so that they don't have to request too many amendments to
`
`03:14
`
`21
`
`deal with the first instance.
`
`03:14
`
`22
`
`THE COURT: Well, but you're really -- you're playing my
`
`03:14
`
`23
`
`thing out, which is, I'm -- I feel a little bit like what we're
`
`03:14
`
`24
`
`doing is kind of a bait and switch with them. I don't mean
`
`03:14
`
`25
`
`this pejorative. I've been in your shoes. But I feel like if
`
`
`
`Case 1:20-cv-00034-ADA Document 41 Filed 02/10/20 Page 11 of 20
`
`11
`
`I say 250 pages per chip and the plaintiff needs more and even
`
`if you agree it needs more, then we're going to be revisiting
`
`this, and what do we do then?
`
`MR. FRISCH: Yeah. I think we would have to revisit it
`
`with that particular vendor at that point, if they needed more.
`
`And just to clarify one point, Your Honor, our proposal
`
`had been 250 pages for that vendor --
`
`THE COURT: Okay.
`
`MR. FRISCH: -- per chip.
`
`1 2 3 4 5 6 7 8 9
`
`03:14
`
`03:14
`
`03:14
`
`03:14
`
`03:14
`
`03:14
`
`03:14
`
`03:14
`
`03:14
`
`03:14
`
`10
`
`THE COURT: Well, in that case it's even a little more
`
`03:15
`
`11
`
`strict then, right? I mean, it's even a smaller universe that
`
`03:15
`
`12
`
`the plaintiff is going to have access to then, right?
`
`03:15
`
`13
`
`MR. FRISCH: Well, yeah, for printing. They'll have
`
`03:15
`
`14
`
`access to the whole universe of code to review obviously.
`
`03:15
`
`15
`
`THE COURT: So here's where I'm headed on this: I don't
`
`03:15
`
`16
`
`really care at one level what the number of pages is. And what
`
`03:15
`
`17
`
`I mean by that is, I know the plaintiff's firm. They're not
`
`03:15
`
`18
`
`going to, in my opinion, take any more pages of anything than
`
`03:15
`
`19
`
`they need to have. Now, I know that doesn't satisfy anyone on
`
`03:15
`
`20
`
`the defendants' side, but what I'm trying to figure out here
`
`03:15
`
`21
`
`is -- and so I could on the one hand -- for example, if it's
`
`03:15
`
`22
`
`Samsung's stuff or it's LG's stuff directly, you know, I could
`
`03:15
`
`23
`
`say to the plaintiff, I'm going to meet you at 50 pages, and if
`
`03:15
`
`24
`
`you need more, you know, ask defense counsel, and if they won't
`
`03:16
`
`25
`
`give it to you, contact me, and if you're being reasonable,
`
`
`
`Case 1:20-cv-00034-ADA Document 41 Filed 02/10/20 Page 12 of 20
`
`12
`
`I'll let you have more. You know, that's about a 15-minute --
`
`that gets it solved in about 15 minutes.
`
`What I'm trying to figure out here is -- and I'm going to
`
`really need the defendants' help here, is what is the right
`
`amount to guarantee to the plaintiff -- I get that they're
`
`going to have access to all of it, but what is -- what is the
`
`way to protect the plaintiff if they could convince me that
`
`they needed more than whatever the number is versus whatever
`
`the unit is? What is -- what gives the plaintiff comfort and
`
`1 2 3 4 5 6 7 8 9
`
`03:16
`
`03:16
`
`03:16
`
`03:16
`
`03:16
`
`03:16
`
`03:16
`
`03:16
`
`03:16
`
`03:16
`
`10
`
`me comfort that that won't seriously delay the case and delay
`
`03:16
`
`11
`
`the plaintiff's ability to get the information? And by get it,
`
`03:16
`
`12
`
`I mean be able to take copies of it.
`
`03:17
`
`13
`
`MR. FRISCH: Sure. I mean, I think it's that we're also
`
`03:17
`
`14
`
`obviously willing to be as reasonable as we can. I mean, I
`
`03:17
`
`15
`
`think part of the problem is the issue of whether or not they
`
`03:17
`
`16
`
`will need more code beyond the limit. I think it could come up
`
`03:17
`
`17
`
`in both proposals, to be honest.
`
`03:17
`
`18
`
`I mean, under the 250 accused architecture, if they define
`
`03:17
`
`19
`
`architecture in a certain way and they've gone above that with
`
`03:17
`
`20
`
`respect to one of the third parties, I think we'd find
`
`03:17
`
`21
`
`ourselves in the same situation where we would have to go back
`
`03:17
`
`22
`
`to that third party if they need more code.
`
`03:17
`
`23
`
`THE COURT: Okay. But -- I get that, but what I'm saying
`
`03:17
`
`24
`
`is, is you guys are the ones who are trying to persuade me to
`
`03:17
`
`25
`
`be more restrictive than what I am in the default order. And
`
`
`
`Case 1:20-cv-00034-ADA Document 41 Filed 02/10/20 Page 13 of 20
`
`13
`
`so now to obtain that, I need to know what we're doing to make
`
`sure -- not with you guys. Not with Samsung and not with LG
`
`because those are companies I have direct power over -- not
`
`that I even need to exercise it, but, I mean, if I tell you
`
`that they've got to do something, I'm not going to worry that
`
`that will take very long for you to tell your clients what
`
`they've got to do.
`
`Again, if we're talking about restricting the plaintiff's
`
`ability to have this -- to be able to get pages of this
`
`1 2 3 4 5 6 7 8 9
`
`03:17
`
`03:17
`
`03:18
`
`03:18
`
`03:18
`
`03:18
`
`03:18
`
`03:18
`
`03:18
`
`03:18
`
`10
`
`information, what -- how do we do that in a way that the third
`
`03:18
`
`11
`
`party -- if we have to go back and tell them it's subsequently
`
`03:18
`
`12
`
`different, I want to avoid that. I don't want to -- you know,
`
`03:18
`
`13
`
`I could make it a million, and then there'd be no problem
`
`03:18
`
`14
`
`because it's not going to -- you know. But I'm struggling to
`
`03:18
`
`15
`
`figure out what the right number and unit size is to make sure
`
`03:18
`
`16
`
`that a third party can't -- and maybe what you can represent on
`
`03:19
`
`17
`
`behalf of Samsung is that if you were to -- that you feel that,
`
`03:19
`
`18
`
`in your opinion and having worked with these third parties and
`
`03:19
`
`19
`
`given their relationship with Samsung or LG, that they would be
`
`03:19
`
`20
`
`highly likely to very quickly exceed whatever I ordered they
`
`03:19
`
`21
`
`do, then we may not have a problem, and we can just really try
`
`03:19
`
`22
`
`and figure out the number and the units right now.
`
`03:19
`
`23
`
`If we can't, if you can't make that representation, then
`
`03:19
`
`24
`
`I'm reluctant to change the default order.
`
`03:19
`
`25
`
`MR. FRISCH: I don't know that I can make that
`
`
`
`Case 1:20-cv-00034-ADA Document 41 Filed 02/10/20 Page 14 of 20
`
`14
`
`representation on behalf of all the third parties today. I
`
`mean, I can tell you that we've been in touch with the relevant
`
`third parties and that they have been, you know, extremely
`
`responsive.
`
`I think they're going to want -- all of them have, you
`
`know, currently objected obviously to providing source code
`
`without a protective order, and they're going to want to see
`
`whatever gets ruled on. Our concern actually was with the
`
`default language, that they would come back to us and say that
`
`1 2 3 4 5 6 7 8 9
`
`03:19
`
`03:19
`
`03:19
`
`03:19
`
`03:20
`
`03:20
`
`03:20
`
`03:20
`
`03:20
`
`03:20
`
`10
`
`it's not clear to them what an accused architecture is.
`
`03:20
`
`11
`
`And that's our concern as well, is we're not sure in the
`
`03:20
`
`12
`
`present context what is going to differentiate one accused
`
`03:20
`
`13
`
`architecture from another. You know, Mr. Healy talked about
`
`03:20
`
`14
`
`relevant source code basis, but we're not clear as to what kind
`
`03:20
`
`15
`
`of changes between the codes he's going to -- architecture.
`
`03:20
`
`16
`
`MR. HEALY: Your Honor, this is Mr. Healy.
`
`03:20
`
`17
`
`THE COURT: Yes, sir.
`
`03:20
`
`18
`
`MR. HEALY: I apologize.
`
`03:20
`
`19
`
`THE COURT: No. I was going to ask you to chat, please.
`
`03:20
`
`20
`
`MR. HEALY: Thank you, Your Honor. Again, Mr. Healy on
`
`03:20
`
`21
`
`behalf of Ancora. And I hope we maybe can have two quick
`
`03:20
`
`22
`
`solutions to the problems the Court has raised.
`
`03:20
`
`23
`
`Again, number one, as far as an objective measure, to
`
`03:21
`
`24
`
`counsel's point, we frankly have -- and again I'll tell you on
`
`03:21
`
`25
`
`the call certainly are more amenable to a more restrictive
`
`
`
`Case 1:20-cv-00034-ADA Document 41 Filed 02/10/20 Page 15 of 20
`
`15
`
`limit than just per chip set, per chip set vendor with respect
`
`to the responses limited. But if it's better for defendants if
`
`we agree to per chip set and per the accused architecture,
`
`we're happy to make that compromise.
`
`Number two, Your Honor, with respect to what other
`
`procedures are in place that would allow someone to make an
`
`objection or raise an issue if, you know, they believe we're
`
`printing excessive code, the agreed portions of the protective
`
`order that we have negotiated with defendants allows defendants
`
`1 2 3 4 5 6 7 8 9
`
`03:21
`
`03:21
`
`03:21
`
`03:21
`
`03:21
`
`03:21
`
`03:21
`
`03:21
`
`03:21
`
`03:21
`
`10
`
`or any other third party, frankly, that if they believe, even
`
`03:21
`
`11
`
`if we're within the 250 page limit, that we're being excessive
`
`03:21
`
`12
`
`or that we're printing code that we shouldn't or printing code
`
`03:21
`
`13
`
`for an improper purpose, even within the 250 page limit,
`
`03:21
`
`14
`
`they're entitled to object and raise an issue.
`
`03:21
`
`15
`
`And the -- what I am concerned about is that we would send
`
`03:22
`
`16
`
`a code reviewer to review code. They would be there. They'd
`
`03:22
`
`17
`
`be reviewing code, and then if an issue arises because we're
`
`03:22
`
`18
`
`limited to some arbitrarily small number, that in order to get
`
`03:22
`
`19
`
`the code, we'd have to have a dispute with Your Honor. We'd
`
`03:22
`
`20
`
`then have to go back. We'd have to print the code. There
`
`03:22
`
`21
`
`could be all the issues Your Honor noted about third parties --
`
`03:22
`
`22
`
`you know, a bait-and-switch scenario; whereas, the current
`
`03:22
`
`23
`
`procedures in the Court's default order already provide for
`
`03:22
`
`24
`
`these. We have a default limit of 250 pages. We can agree
`
`03:22
`
`25
`
`that that would be per chip set if that's what defendants
`
`
`
`Case 1:20-cv-00034-ADA Document 41 Filed 02/10/20 Page 16 of 20
`
`16
`
`prefer because of Your Honor's default.
`
`And then if there's an issue before we'd be able to get
`
`the code but we would have already been able to print it, it'd
`
`be ready and waiting, they can file -- you know, whoever has a
`
`concern can file -- can raise it with the Court, and the Court
`
`can address it.
`
`But it avoids that situation that's misleading the third
`
`party. It avoids that situation of having a very interrupted
`
`process that's not efficient and not cost effective for anyone.
`
`1 2 3 4 5 6 7 8 9
`
`03:22
`
`03:22
`
`03:22
`
`03:22
`
`03:22
`
`03:22
`
`03:22
`
`03:22
`
`03:22
`
`03:23
`
`10
`
`THE COURT: I'll tell counsel for the defendant, it does
`
`03:23
`
`11
`
`make -- and I know -- look. It's easy for me to say because
`
`03:23
`
`12
`
`you're the ones who have got to hang up and talk to your
`
`03:23
`
`13
`
`clients and the third parties and explain what a crazy judge in
`
`03:23
`
`14
`
`Waco is doing to you and also, you know, try and talk to third
`
`03:23
`
`15
`
`parties. What does make sense to me -- and, again, I've talked
`
`03:23
`
`16
`
`about it sort of in the sense that if the plaintiffs needed
`
`03:23
`
`17
`
`more, I would be available. I can tell you -- and it may mean
`
`03:23
`
`18
`
`nothing to your client, but, you know, I tend to favor the
`
`03:23
`
`19
`
`proposal that was just made of sticking with the default of the
`
`03:23
`
`20
`
`protective order. But certainly I think you can represent to
`
`03:24
`
`21
`
`your clients that if they have a specific issue with anything
`
`03:24
`
`22
`
`that is being done by the plaintiffs in terms of the amount of
`
`03:24
`
`23
`
`what they want to do, I think you can represent to them, as I
`
`03:24
`
`24
`
`showed today that -- I mean, I think you guys contacted the
`
`03:24
`
`25
`
`Court today and said, we have an issue, and I was able to take
`
`
`
`Case 1:20-cv-00034-ADA Document 41 Filed 02/10/20 Page 17 of 20
`
`17
`
`care of it literally on the same day. And so far within about
`
`a 24-hour time period, I've been able to do that the entire
`
`time I've been on the bench. And that's probably what I would
`
`prefer to do here, is keep things as they are but make sure
`
`that you're able to give your clients that comfort.
`
`And I'll just say I'm -- I don't -- I hope I'm not
`
`lecturing to the plaintiff's lawyer. Certainly I don't mean to
`
`lecture anyone. But, I mean, I'm putting all this on the
`
`record so that were there to be an issue down the road, you
`
`1 2 3 4 5 6 7 8 9
`
`03:24
`
`03:24
`
`03:24
`
`03:24
`
`03:24
`
`03:24
`
`03:24
`
`03:24
`
`03:25
`
`03:25
`
`10
`
`know, defense counsel -- you know, defense counsel can show
`
`03:25
`
`11
`
`that I've just said this to the third parties and their clients
`
`03:25
`
`12
`
`and also -- and that way, again, if there's any problem with --
`
`03:25
`
`13
`
`before the plaintiffs would be allowed to take -- you know, do
`
`03:25
`
`14
`
`anything that would upset the third parties, they would have
`
`03:25
`
`15
`
`to -- the third parties would have an opportunity for me to
`
`03:25
`
`16
`
`decide whether that was okay or not.
`
`03:25
`
`17
`
`MR. FRISCH: Thank you, Your Honor. We appreciate that
`
`03:25
`
`18
`
`clarification. And after the protective order is entered, you
`
`03:25
`
`19
`
`know, we would be -- we would obviously share that with the
`
`03:25
`
`20
`
`third parties, and then I think they would independently raise
`
`03:25
`
`21
`
`any concerns that they have if they have them.
`
`03:26
`
`22
`
`THE COURT: Well, I'm sorry if I interrupted you. I
`
`03:26
`
`23
`
`didn't mean to. But part of the reason I just said all that is
`
`03:26
`
`24
`
`I would be happy, you know, for you guys to get a copy of this
`
`03:26
`
`25
`
`transcript, you know, and be able to actually, you know,
`
`
`
`Case 1:20-cv-00034-ADA Document 41 Filed 02/10/20 Page 18 of 20
`
`18
`
`provide it to those folks and make it clear they -- you would
`
`also have to make sure they know that -- I mean, I'm sure they
`
`have these experiences where they have these problems and
`
`there's just no one -- you know, there's no one in my seat who
`
`is willing to give them any relief if they feel they need
`
`relief. And so, you know, if that would help, or you can just
`
`tell them. I have -- well, actually, it's been a million
`
`years. I mean, I actually, you know, represented Samsung, you
`
`know, forever ago, and so, you know, I have some understanding
`
`1 2 3 4 5 6 7 8 9
`
`03:26
`
`03:26
`
`03:26
`
`03:26
`
`03:26
`
`03:26
`
`03:26
`
`03:26
`
`03:26
`
`03:26
`
`10
`
`of, you know, what everyone's dealing with. And that's what
`
`03:26
`
`11
`
`I'm trying to do is give you guys some cover to let them know
`
`03:26
`
`12
`
`that they'll be protected in this process as well.
`
`03:27
`
`13
`
`MR. FRISCH: Thank you, Your Honor. We appreciate that.
`
`03:27
`
`14
`
`THE COURT: So that -- you know, basically I'm okay with
`
`03:27
`
`15
`
`the default. Is there anything else we needed to take up?
`
`03:27
`
`16
`
`MR. HEALY: This is Mr. Healy on behalf of Ancora. No,
`
`03:27
`
`17
`
`Your Honor. Thank you.
`
`03:27
`
`18
`
`THE COURT: Okay. Anything on behalf of the defendants?
`
`03:27
`
`19
`
`MR. FRISCH: Nothing else on behalf of Samsung, Your
`
`03:27
`
`20
`
`Honor.
`
`03:27
`
`21
`
`THE COURT: And LG?
`
`03:27
`
`22
`
`MS. CHIAVIELLO: Nothing, Your Honor.
`
`03:27
`
`23
`
`THE COURT: Okay. Well, I sure -- I hope you guys have a
`
`03:27
`
`24
`
`wonderful weekend, and I hope -- if y'all need me, just give me
`
`03:27
`
`25
`
`a holler.
`
`
`
`Case 1:20-cv-00034-ADA Document 41 Filed 02/10/20 Page 19 of 20
`
`19
`
`MR. HEALY: Thank you, Your Honor.
`
`MR. FRISCH: Thank you, Judge.
`
`(Hearing adjourned at 3:27 p.m.)
`
`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
`
`03:27
`
`03:27
`
`03:27
`
`
`
`Case 1:20-cv-00034-ADA Document 41 Filed 02/10/20 Page 20 of 20
`
`20
`
`UNITED STATES DISTRICT COURT )
`
`WESTERN DISTRICT OF TEXAS
`
`)
`
`I, Kristie M. Davis, Official Court Reporter for the
`
`United States District Court, Western District of Texas, do
`
`certify that the foregoing is a correct transcript from the
`
`record of proceedings in the above-entitled matter.
`
`I certify that the transcript fees and format comply with
`
`those prescribed by the Court and Judicial Conference of the
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`United States.
`
`Certified to by me this 10th day of February 2020.
`
`
`
`
`
`
`
`
`/s/ Kristie M. Davis
`KRISTIE M. DAVIS
`Official Court Reporter
`800 Franklin Avenue, Suite 316
`Waco, Texas 76701
`(254) 340-6114
`kmdaviscsr@yahoo.com
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
