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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`ANCORA TECHNOLOGIES, INC.
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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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`VS.
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`July 7, 2020
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`LG ELECTRONICS, INC., 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.
`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.
`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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`Case 1:20-cv-00034-ADA Document 79 Filed 07/08/20 Page 2 of 33
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`Eric T. O'Brien, Esq.
`Covington & Durling 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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`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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`Case 1:20-cv-00034-ADA Document 79 Filed 07/08/20 Page 3 of 33
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`(July 7, 2020, 2:01 p.m.)
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`MS. MILES: Telephonic discovery hearing in Civil Action
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`1:20-CV-34, styled Ancora Technologies, Incorporated versus LG
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`Electronics, Incorporated and others.
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`THE COURT: If I could hear from counsel for plaintiff
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`first and then counsel for defendants, and then we'll take up
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`the issues that brought us together.
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`MR. HEALY: Thank you, Your Honor. This is Mr. Healy on
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`behalf of the plaintiff. I believe Charley Ainsworth is also
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`on the line.
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`THE COURT: Okay.
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`MR. BUNT: This is also Chris Bunt, Your Honor, on for
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`Ancora as well.
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`THE COURT: Very good. Thank you, sir.
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`MR. DAVIS: And, Your Honor, this is Tom Davis for Morgan
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`Lewis for LG. On the line also are Elizabeth Chiaviello,
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`Collin Park and Win Carter.
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`THE COURT: Very good. I have gone through -- and Josh is
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`sitting here with me to try and help me get through this. I've
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`gone through the e-mails and I know you guys have worked pretty
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`hard to get this resolved. I'm glad for that and I'm glad that
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`you've come to me, and hopefully we'll get through this today.
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`I'm not sure exactly which side would be best starting off
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`telling me what needs to be done. So I'll allow you all to
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`decide who should go first and we'll just work our way through
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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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`Case 1:20-cv-00034-ADA Document 79 Filed 07/08/20 Page 4 of 33
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`trying to get this source code produced.
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`MR. HEALY: Yes, Your Honor. This is Mr. Healy. I'm
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`happy to start if Your Honor desires.
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`THE COURT: Fine.
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`MR. HEALY: Okay. So two issues today, Your Honor.
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`Number one, as you may recall at the last hearing on June 17th,
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`one of the issues we raised with the Court was that during our
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`first code review, which started in May, we had told LG that
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`there were a number of missing code modules. In particular of
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`concern to us were the code associated with what's called a CU
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`or C update API and the update center functionality. To make a
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`long story short, rather than producing the source code for
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`these modules, LG appears to have perhaps inadvertently
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`produced the programs themselves. Given that we've been unable
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`to get sort of a direct answer from LG as to when that code
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`would be made available, we raised that issue with the Court,
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`and in response the Court directed LG to let us know by the
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`following Monday whether LG actually had that code, which was a
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`bit of a question mark at that point, and if so, when it would
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`be made available.
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`The following Monday LG responded, and that's Exhibit 1 at
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`Pages 3 through 4, and what LG told us was that it did have the
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`code but then said that it would be too burdensome to collect
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`and produce that code, and instead LG proposed to load onto the
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`source code computer something called a decompiler so 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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`Case 1:20-cv-00034-ADA Document 79 Filed 07/08/20 Page 5 of 33
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`according to LG, our expert could decompile the relevant
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`programs into source code.
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`I'll have to admit, Your Honor, that I did not know what a
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`decompiler was or what was entailed, so I reached out to my
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`experts to sort of get the scoop as to what -- if that was a
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`viable option. They explained to me that basically decompiling
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`takes an executable program and a table to successfully
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`decompile it, basically breaks it down and translates it back
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`into source code. So I thought, well, maybe this is a viable
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`option.
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`My experts further explained to me, however, that
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`decompiling has some fairly significant drawbacks. Number one,
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`and I think most importantly for our discussion today, the
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`decompiler that LG proposed to use does not work with code
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`written in C or C plus plus, and it's -- according to my
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`expert, the modules we are interested in, the two in
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`particular, are written in C or C plus plus. So in short, it
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`won't work with -- for the very purpose we're asking for it
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`for.
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`Number two, my experts told me that decompiled code won't
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`include any of the programming comments that source code
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`normally includes which are helpful to understand how the code
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`works. Decompiled code also is known to exclude something
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`called variable names which my expert explained was also
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`problematic.
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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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`Case 1:20-cv-00034-ADA Document 79 Filed 07/08/20 Page 6 of 33
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`And then, frankly, number three, Your Honor, decompiled
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`code can be very inaccurate. Mr. Martin sent me an article
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`explaining that decompiled code typically at best is in the
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`neighborhood of 50 percent accurate, and in fact the study that
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`he sent me included the exact decompiler that LG is proposing
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`to use and reported -- the study reported that that decompiler
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`was over 60 percent accurate in only nine percent of cases.
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`So obviously these gave us substantial concerns. We
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`relayed this to LG. We told them -- and, again, chief among
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`all the issues was that the decompiler would not work with the
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`coded issue here. We also pointed out the other issues that I
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`mentioned. And, frankly, you know, what LG told us was it
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`actually understood it didn't contest that the decompiler
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`wouldn't work with the code that we are most interested in, but
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`we did try and make some efforts to, nevertheless, streamline,
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`I mean, and of particular note, if Your Honor read the e-mail,
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`you can see we told LG, you know, we'd be happy and willing to
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`accept -- to limit the code we're looking for, let's agree up
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`front to request from a certain subset of the accused products,
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`and if LG will agree to treat that code as representative
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`either all the products or some subset of the products, you
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`know, that's fine with us. We don't have any interest in
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`reviewing unnecessary code or putting people to the burden if
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`we can reach a reasonable compromise to avoid the need to do
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`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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`Case 1:20-cv-00034-ADA Document 79 Filed 07/08/20 Page 7 of 33
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`Again, in response, LG told us that it had actually
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`understood that a decompiler would not work with the main coded
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`issues here, but it rejected our proposal and told us instead
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`that we had to use the decompiler and that was the route they
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`wanted to take and that if for some reason later on down the
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`road we thought it was not going to be sufficient, we could
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`discuss it then. And, frankly, Your Honor, as we told them in
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`the e-mails more politely, but, you know, we just don't see
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`that this makes any sense. We already know that this program
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`is not going to work with the two modules of most interest to
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`us, and we don't understand what kicking the can down the road
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`accomplishes other than delaying this case, and that's frankly
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`where we still are, Your Honor. LG hasn't located or produced
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`the code as far as we understand it. It's still insisting that
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`we use the program we know won't work.
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`And in sum, Your Honor, with respect to the first issue,
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`at least from plaintiff's perspective, we just can't afford to
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`continue having these delays. If LG's still willing to accept
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`our proposed compromise, great. We're happy to work with them
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`to identify the subsets at issue and get this accomplished and
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`get this done. And if they're not or they, you know, don't
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`want to agree to representative products, then we would ask the
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`Court to order them to very quickly collect and produce the
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`requested code so that we can adhere to the Court's schedule.
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`Unless the Court has any questions, I'm happy to turn it
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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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`Case 1:20-cv-00034-ADA Document 79 Filed 07/08/20 Page 8 of 33
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`over to LG or whatever the Court prefers.
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`THE COURT: Yeah. I was sitting here talking to my law
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`clerk as you were talking as well, and basically you were
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`reading off the same concerns about the -- the decompiler that
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`he was, and so it doesn't sound to me like that is a viable
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`option for us to get this resolved. So that being said, let me
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`hear from counsel for LG and let's see if we can come up with a
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`solution of how we are going to get this done.
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`MR. DAVIS: Understood, Your Honor. Good afternoon. This
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`is Tom Davis for LG. And on the decompile issue, maybe the
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`parties were talking a little past each other. The majority of
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`the files that were identified to us for APK files -- and we
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`submitted to you in an e-mail confidential information --
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`source code confidential that illustrates the decompile for the
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`APK files were accurate, and I understand from today's
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`conversation that there are two specific files that plaintiff
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`is interested in, and I was only aware of one specific file,
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`the C update file -- C update API file. And the issue is, Your
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`Honor, they've identified pads where this is supposed to exist,
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`and I personally did over ten hours of independent research
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`myself. I have to confess that the source code issue is not
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`something that I'm very adept at, but I went to the source code
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`computer and researched and I couldn't find the file. In
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`the images that I -- we submitted on behalf of LG, those files
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`don't exist.
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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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`Case 1:20-cv-00034-ADA Document 79 Filed 07/08/20 Page 9 of 33
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`And just for the record, if we get into any great detail
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`on any additional source code matters, you know, I would note
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`that Samsung is also on the call, and we'd -- before we get
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`into that, you know, we'd make a request that they either drop
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`from the call or we can somehow avoid that.
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`But getting directly to the issue of the files on the C
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`plus plus issue, the code that our client collected, Your
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`Honor, is over 20 terrabytes or almost 20 terrabytes of code.
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`It's a huge code base. The client did not restrict the code.
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`They didn't pull out or in any way carve out binary versus
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`non-binary code. In some instances the code is provided by
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`third parties in executable binary format.
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`With respect to whether the code exists within LG or not,
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`we went back to the client and asked them a number of times,
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`one, is the code relevant? So in the first instance we've
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`indicated to Ancora that the code is not relevant. These are
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`related to apps, and the code that they've accused in the case
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`that we believe is at issue is related to over the air updates
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`for the devices and for the operating system.
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`So in the first instance we don't believe it's relevant.
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`We understand that they would like to do their diligence to
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`confirm that. And so what we've informed them is this code, as
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`collected by the client and put onto the computer, is in the
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`form that is representative for all of the products.
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`And when we did the searches for these particular code
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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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`Case 1:20-cv-00034-ADA Document 79 Filed 07/08/20 Page 10 of 33
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`files, we couldn't identify them to even determine where --
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`which products these related to, and when I say we, Your Honor,
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`that's myself. I couldn't find the files. I couldn't figure
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`out if I could decompile them, and I couldn't ask my client
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`where they were.
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`And as a point of reference, the client doesn't have the
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`code in the format that plaintiff's expert reviewed it in.
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`They have a product manager and then they have individual
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`engineers. So for each product for them to find a specific
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`file would take at least, from the client's perspective, three
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`to five hours for each file because they would have to go to
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`each product manager and to each engineer and then down the
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`chain to figure out if they have any source code for these
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`binary files. Our understanding presently, as we've confirmed
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`with the client, is that the code that they -- that's collected
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`and produced is in the format that they have. If the
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`underlying source code is not in the production, it would
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`require significant amount of effort and time to go back and
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`figure out if they have it.
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`So with respect to plaintiff's possible solution of
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`representative code, we don't have a position on that. We've
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`been unable to figure out if that's viable, given the over 150
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`products in the individual code bases for across time. But we
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`would be willing to -- if plaintiff would be amenable to
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`this -- figuring out if they can identify specifically where
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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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`Case 1:20-cv-00034-ADA Document 79 Filed 07/08/20 Page 11 of 33
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`these files exist, we'd be able to go back to the client and
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`have the client pick for -- a representative number of
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`products, two, three, maybe four. If Ancora would say, these
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`number of products, we can go back to the client and say, for
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`these products and these folders, please research, and we can
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`limit the burden on LG, one, because we don't think these files
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`are relevant, but at least we can go back and determine if we
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`have the source code for these files, and if we don't have the
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`source code for the files, we'll need to figure out at that
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`point if Ancora needs to collect those from -- or seek those
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`from the third parties who provided those to LG in that format,
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`and we'd be willing to at least accommodate that, but to go
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`through an entire source code recollection and reproduction for
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`150 products using multiple engineers for each of those, it
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`seems the burden outweighs the need, given that we believe that
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`they're not relevant.
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`And unless Your Honor has any further questions, that is
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`really the summary of the issues for point one.
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`THE COURT: I'll hear from counsel for plaintiff.
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`MR. HEALY: Yes, Your Honor. This is Mr. Healy again.
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`You know, I would say up front I have some substantial
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`concerns here. You know, we have been raising this issue with
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`LG since May. You know, if you -- and I certainly appreciate
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`that counsel, you know, has now done an independent search, but
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`if you look at the screenshot they provided the Court, which,
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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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`Case 1:20-cv-00034-ADA Document 79 Filed 07/08/20 Page 12 of 33
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`you know, we never saw before but they provided them about ten
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`minutes ago, his search results reflect that they performed
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`these searches yesterday. And so if we've been raising these
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`issues since May and then counsel -- and, again, I appreciate
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`his candor. He said he's not well versed in source code. I
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`think that's another issue here, but why is it that we've been
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`raising these issues for so long, we've been exchanging
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`e-mails, we've had meet and confers, we've had hearings, and
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`yet LG's -- the first time that their counsel or anyone at LG
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`apparently does a search was yesterday evening. I mean, to us
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`that's symptomatic of the problem here. We are having a
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`substantial amount of issues getting discovery from LG, and
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`particular defendants in general, and, again, with respect to
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`LG in particular, we only get any movement at all, any
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`compromises, any work product that's demonstrating to us that
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`something's actually being done the day that we have a hearing
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`or the day before we have a hearing, and that's -- and, again,
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`it's problematic for us. We have -- you know, as the e-mails,
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`Your Honor, we sent Your Honor reflect, you know, we're waiting
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`for substantial volumes of source code. This is all material
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`that should have been produced months ago, if not earlier. And
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`so I do have some substantial concerns about, you know,
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`receiving it, you know, photographic evidence that nothing has
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`been done the day before our hearing.
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`With respect to the specific questions, again, we
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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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`Case 1:20-cv-00034-ADA Document 79 Filed 07/08/20 Page 13 of 33
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`provided, you know, file paths from Mr. Martin who's our source
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`code expert. Mr. Martin was in, you know, LG's or counsel's
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`office last week conducting more research trying to find -- you
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`know, reviewing the source code. And certainly, as LG's
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`counsel had, you know, conducted a search or LG I would say
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`conducted these searches previously, Mr. Martin would have been
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`well equipped in order to hopefully get them some answers that
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`that's what they actually need, and that's why this timing is
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`even more problematic.
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`With respect to the actual substance of the issues, Mr.
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`Martin is very -- you know, at least -- I have to defer to him.
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`He's the expert, and as was explained to you, I certainly am
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`not. He has told us that this is relevant. It's something
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`that we pointed out to LG back in May. This is, you know, in
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`the last week or so the first we're beginning to hear that they
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`have any questions about that. But I have to defer to my
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`expert and what he told me was relevant. And, again, we've
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`made a lot of efforts here to try and answer their questions.
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`We respond to their e-mails, you know, within a day. I speak
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`to my experts to make sure that we're giving them the proper
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`information. But it's beginning to feel a little bit, you
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`22
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`know, like whack a mole. Every time that we give them an
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`23
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`answer, they come up with a new question, and, you know, again,
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`24
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`the photographic evidence that we have now confirms that they
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`25
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`didn't even conduct a search until yesterday, and to us that's,
`
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`
`
`Case 1:20-cv-00034-ADA Document 79 Filed 07/08/20 Page 14 of 33
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`frankly, inexcusable. It's suggesting that all the e-mail
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`exchanges we've had with them over the past month have been,
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`you know, a bit of gamesmanship. And if this is a question
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`that they had raised immediately had they sent us to perform
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`these searches, certainly we would take them seriously and like
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`to take them seriously now, but my expert is no longer in their
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`office reviewing code. And so, you know, we think that they
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`now need to be held to the consequences of their failure to do
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`a search previously and they need to be held to, you know, the
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`1 2 3 4 5 6 7 8 9
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`burden and the discovery obligations that they have.
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`11
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`Again, I'm more than happy to agree to a reasonable
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`12
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`compromise and try and narrow the amount of code that needs to
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`be produced, but in some respects my hands are now tied, and
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`14
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`they're tied because LG didn't conduct a search until
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`15
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`yesterday, and I just really don't know how I can overcome that
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`issue. When we are desperately trying to keep the Court's
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`schedule, we've sent our experts, you know, they've agreed,
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`graciously, to fly during these COVID times, and it's just --
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`19
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`it's a lot of imposition to now require them to return to
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`Houston, which is obviously having a sort of a COVID flare-up,
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`you know, under these circumstances. It's just very -- I don't
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`22
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`really know how to say it other than it's very frustrating,
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`23
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`Your Honor.
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`24
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`THE COURT: I got it. That's why I took this job. I
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`25
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`hated dealing with -- when I was in your position. I'm
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`
`
`Case 1:20-cv-00034-ADA Document 79 Filed 07/08/20 Page 15 of 33
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`15
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`empathetic to both sides and what you all are trying to
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`accomplish.
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`I'm going to put you on hold for one second. I have a
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`proposal I think I'm going to make, but I'm going to run it by
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`my clerk. I'll be right back.
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`If I were to allow the plaintiff to have a number of
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`representative products that you want code from with the
`
`understanding that if once you get in there you needed to
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`expand, I would be sympathetic, what is the minimum number that
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`1 2 3 4 5 6 7 8 9
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`you think that plaintiff believes they could live with?
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`11
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`MR. HEALY: Your Honor, this is Mr. Healy. I'd certainly
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`12
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`say five would be sufficient. I guess the only caveat I would
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`13
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`say is certainly, you know, I would -- we would want some
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`14
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`understanding from LG, you know, that those -- that those five
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`products, you know, would actually cover the span of the entire
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`product base. And so in some respects, you know, we would
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`defer to them. If they obviously believe we need six in order
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`to cover the full product base, I don't have any issue with
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`19
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`that, but I just want to make sure that we have enough to span
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`the entire accused product scope.
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`21
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`THE COURT: Five sounds about the same number I was going
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`22
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`to pick and that my clerk and I were discussing. Let me hear
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`23
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`from counsel for LG what they think about that proposal.
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`24
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`MR. DAVIS: Your Honor, we're happy to use five to
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`25
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`facilitate this discovery; however, given the sheer number of
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`
`
`Case 1:20-cv-00034-ADA Document 79 Filed 07/08/20 Page 16 of 33
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`16
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`products and the time period to how many products have existed,
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`it's unclear at this point if five can be representative of all
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`products, but what we can endeavor to do is select five that
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`plaintiff can review to ensure that the code is in and of
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`itself relevant and it covers the aspects of the claims that
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`they think are at issue. And then to the extent that the
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`parties need to compartmentalize or group products based on
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`families or based on timing, we're more than willing to
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`accommodate that, but at this stage I think from our
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`1 2 3 4 5 6 7 8 9
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`perspective would be too early to pick five products to
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`11
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`represent the entire base, but we are definitely willing to
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`12
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`facilitate plaintiff's evaluation of the code that we think is
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`13
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`not relevant, and if five products will enable them to have
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`14
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`their expert review the code to make that assessment and then
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`15
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`the parties can move forward from that point, I think that's a
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`viable solution.
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`17
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`THE COURT: I'm going to put you on hold again for just
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`18
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`one second.
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`Okay. Here's what I'm going to do. Here's what I'm going
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`20
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`to suggest we do, and I'll hear first from -- after I say this
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`21
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`from the plaintiff and then from the defendant. I am trying to
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`22
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`work out something that's hopefully best for everyone. I'm
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`23
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`going to order the defendant and their counsel to pick out the
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`24
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`five products -- the five representative products that
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`25
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`represent the most of the -- of the accused products that they
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`
`
`Case 1:20-cv-00034-ADA Document 79 Filed 07/08/20 Page 17 of 33
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`17
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`can reasonably pick, and I want them to produce the source code
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`and make it available for inspection by plaintiff's experts no
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`later than next Wednesday, and I think you said, but I could be
`
`wrong, you said that the experts went to Houston to see it.
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`Listen. I don't want the perfect to be the enemy of the
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`good if it's Thursday or something. I just -- it needs to get
`
`done next week. I would prefer Wednesday, but, you know, for
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`all I know, your experts won't be able to travel to Houston by
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`then, but -- and if there's some logistic problem on LG getting
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`1 2 3 4 5 6 7 8 9
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`10
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`this that is going to make it outside of the lawyers' control
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`11
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`make it impossible for this to happen, let me know right away
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`12
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`just so I can -- we can stay on top of this. I'll understand
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`13
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`if -- you know, with the virus and everything that's going on,
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`14
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`I know there are problems, but the goal is to get it -- make it
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`15
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`available to plaintiff's experts by next Wednesday no later
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`16
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`than the end of the week, barring some very serious problem
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`17
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`that you can -- you can make clear to me.
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`18
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`Then the plaintiff's experts can go and look at what has
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`19
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`been presented to them and the plaintiff's experts I'm going to
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`20
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`rely on. Unless the plaintiff's counsel tells me that this
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`21
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`isn't wise for me to do and for the plaintiff to do, the
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`22
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`plaintiff's counsel can go through what has been produced, and
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`23
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`if the experts believe that there are certain buckets -- and by
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`24
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`buckets I mean different kinds of products that are not
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`25
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`represented by what's been produced, I want the expert to be
`
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`
`
`Case 1:20-cv-00034-ADA Document 79 Filed 07/08/20 Page 18 of 33
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`18
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`able to tell counsel who can then tell me exactly what types of
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`products those are so you can tell -- you can -- plaintiff's
`
`counsel can tell LG, but if there's an issue, plaintiff's
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`counsel can tell me.
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`And then also if there are -- if there's source code that
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`plaintiff's expert believes is necessary to be produced beyond
`
`what has been produced by -- because there are variations
`
`within the same kind of product group, again, I'm going to rely
`
`on plaintiff's counsel and their experts to be as specific as
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`1 2 3 4 5 6 7 8 9
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`10
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`possible. So either LG can agree to produce it or plaintiff's
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`11
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`counsel can explain to me why it needs to be produced and I can
`
`12
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`assist, but that seems to me to be a big first step getting
`
`13
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`plaintiff what they need as quickly as possible and making the
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`14
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`burden as reasonable on LG as I can, given everything that's
`
`15
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`going on with the virus.
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`16
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`So let me start with the plaintiff. Counsel, if there is
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`17
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`some -- if that's a -- if my suggestion is okay, great. If
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`18
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`there's something you want to suggest I do to amend it, let me
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`19
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`know. It's your floor.
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`20
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`MR. HEALY: Thank you, Your Honor. This is Mr. Healy
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`21
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`again. With respect to the timing, I will say that immediately
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`22
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`after this call ends I will check with my expert. I don't know
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`23
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`if it would make any difference to him based on his
`
`24
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`availability about Wednesday or Thursday or even Friday, and so
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`25
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`we will certainly tell LG. I have no need to make them move
`
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`
`
`Case 1:20-cv-00034-ADA Document 79 Filed 07/08/20 Page 19 of 33
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`19
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`faster if my expert can't get there until the following Monday,
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`for example. So I will take care of that right after this
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`call.
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`The only other issue I just want to flag, and this is a
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`conversation that we had begun having with defendant, is that
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`given the situation in Texas, I'm not sure if Mr. Martin will
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`be able to get to Texas in the next -- given the flare-up, but
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`we'll have that discussion, and if there's a remote review,
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`again, certainly we'll factor that into the timing.
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`1 2 3 4 5 6 7 8 9
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`10
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`Aside from those sort of flags, the only additional
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`11
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`request I would say is, given that LG is going to be selecting
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`12
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`the representative products, we would ask that -- and it
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`13
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`doesn't have to be on the same time frame certainly, that we be
`
`14
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`allowed to select, you know, two more products as sort of an
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`15
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`audit just to make sure that the code truly is representative.
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`16
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`We wouldn't have any way to know that unless we were able to
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`17
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`sort of select additional products and then do a comparison.
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`18
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`So that's my limited additional request, Your Honor.
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`19
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`20
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`THE COURT: That sounds fine to me.
`
`And let me hear from counsel for LG why that would be an
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`21
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`unfair burden on LG at this time.
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`22
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`MR. DAVIS: So, Your Honor, I think that the five plus two
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`23
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`seems like a reasonable number at this time, and if we get to
`
`24
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`the point where there are a large number of additional products
`
`25
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`as you indicated plaintiff's expert would be responsible for,
`
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`
`
`Case 1:20-cv-00034-ADA Document 79 Filed 07/08/20 Page 20 of 33
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`20
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`if we disagreed with that, we'll be happy to raise it with the
`
`Court at that time.
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`The only caveat to this source code issue is at this point
`
`LG has produced, you know, terabytes of code, and we believe
`
`that all the code that plaintiff is interested in has already
`
`been produced. We will go back to the client and confirm that,
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`as Your Honor has indicated, but to the extent that the code
`
`for these relevant files are provided to LG from a third party
`
`in binary format where we do not have the source code, we'll
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`1 2 3 4 5 6 7 8 9
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`10
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`make sure that we indicate that to plaintiff as early as
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`11
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`possible so that if there are additional discovery obligations
`
`12
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`or needs that plaintiff will have the opportunity to accomplish
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`13
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`that or to work with us to accomplish that.
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`14
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`15
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`THE COURT: That sounds fine to me.
`
`Does plaintiff's counsel have anything they'd like to add
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`16
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`to that statement?
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`17
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`18
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`MR. HEALY: No, Your Honor.
`
`THE COURT: So let me first start off by saying how much I
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`19
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`appreciate you all are doing exactly what I would hope great
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`20
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`lawyers would do, which is you all appear to be doing a very
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`21
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`g