Case 1:20-cv-00034-ADA Document 91 Filed 08/12/20 Page 1 of 35
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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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`VS.
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`LG ELECTRONICS, INC., ET AL
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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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`August 10, 2020
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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.
`Parker, Bunt & Ainsworth, P.C.
`100 East Ferguson, Suite 418
`Tyler, TX 75702
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`Andres Healy, Esq.
`Steven M. Seigel, Esq.
`Susman Godfrey L.L.P.
`1201 Third Avenue, Suite 3800
`Seattle, WA 98101
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`Elizabeth M. Chiaviello, Esq.
`Winstol D. Carter, Jr., Esq.
`Thomas R Davis, Esq.
`Morgan Lewis and Bockius LLP
`1000 Louisiana Street, Suite 4000
`Houston, TX 77002
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`Collin W. Park, Esq.
`Morgan Lewis & Bockius, LLP
`1111 Pennsylvania Ave., N.W.
`Washington, DC 20004-2541
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`Anupam Sharma, Esq.
`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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`1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`ANCORA TECHNOLOGIES, INC.
`
`VS.
`
`
`LG ELECTRONICS, INC., ET AL
`
`*
`*
`*
`*
`
`*
`* CIVIL ACTION NO. AU-20-CV-34
`SAMSUNG ELECTRONICS CO., LTD, *
` ET AL
`*
`
`August 10, 2020
`
`
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`1 2 3 4 5 6 7 8 9
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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.
`Parker, Bunt & Ainsworth, P.C.
`100 East Ferguson, Suite 418
`Tyler, TX 75702
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`Andres Healy, Esq.
`Steven M. Seigel, Esq.
`Susman Godfrey L.L.P.
`1201 Third Avenue, Suite 3800
`Seattle, WA 98101
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`Elizabeth M. Chiaviello, Esq.
`Winstol D. Carter, Jr., Esq.
`Thomas R Davis, Esq.
`Morgan Lewis and Bockius LLP
`1000 Louisiana Street, Suite 4000
`Houston, TX 77002
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`Collin W. Park, Esq.
`Morgan Lewis & Bockius, LLP
`1111 Pennsylvania Ave., N.W.
`Washington, DC 20004-2541
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`Anupam Sharma, Esq.
`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 91 Filed 08/12/20 Page 2 of 35
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`Court Reporter:
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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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`Kristie M. Davis
`United States District Court
`PO Box 20994
`Waco, Texas 76702-0994
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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 91 Filed 08/12/20 Page 3 of 35
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`(August 10, 2020, 10:00 a.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, LG Electronics USA, Incorporated,
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`Samsung Electronics America, Incorporated and Samsung
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`Electronics Company, Limited.
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`THE COURT: Good morning, everyone. If I could hear
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`announcements from counsel, please.
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`MR. SEIGEL: Good morning, Your Honor. This is Steve
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`Seigel on behalf of Plaintiff Ancora Technologies, and I
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`believe Mr. Andres Healy and Charley Ainsworth are also on the
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`phone on behalf of Plaintiff Ancora.
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`THE COURT: Okie dokie. Good morning.
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`MR. CARTER: Good morning, Your Honor. Good morning, Your
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`Honor. Winn Carter with Morgan Lewis representing LGE. And on
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`the phone with me is Tom Davis, Elizabeth Chiaviello and Collin
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`Park, all with Morgan Lewis and representing LGE.
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`THE COURT: Good morning to each of you as well. I'm
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`happy to take up whatever you all want me to.
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`MR. SEIGEL: Thank you, Your Honor. This is Mr. Seigel
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`for Ancora.
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`Ancora requested this hearing to address three categories
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`of documents that LG is either refusing or unable to produce.
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`The first concerns technical documents that explain the
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`accused functionality, which is called over-the-air, or OTA,
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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 91 Filed 08/12/20 Page 4 of 35
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`updates. The second is documents that relate to LG's control
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`over servers that provide these OTA updates to mobile phones
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`and televisions. And the third category is documents that
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`relate to LG's marketing and promotion of its OTA update
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`functionality to end users or carriers.
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`I'd like to address each of these categories separately,
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`but before getting there I'd like to make three preliminary
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`points.
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`The first is that most of these documents should have been
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`produced in February as part of LG's mandatory pre-Markman
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`disclosures.
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`Second, we know that the documents that we are requesting
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`exist, even though LG has not produced them. For example, as
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`related to technical documents, our experts have told us that
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`LG must have these manuals and documents we're looking for,
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`otherwise its programmers or engineers would have to start from
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`scratch for every product that they create.
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`Our complaint also includes a number of examples of
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`marketing materials that we know exist. And not only do we
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`know from documents that -- like from mobile carriers like
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`Verizon and T-Mobile that these documents in fact exist, but LG
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`admitted in its most recent e-mail to us that the information
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`we seek exists. LG is, nonetheless, refusing to produce what
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`we've requested, telling us that they do not believe that they
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`are relevant.
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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 91 Filed 08/12/20 Page 5 of 35
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`Third, not only do we need these documents, but we also
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`need ESI searches to confirm that LG is actually producing
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`them. And to that end, we have tried to be very reasonable.
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`We've proposed an ESI search protocol in which we've identified
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`the specific types or categories of custodians we would like to
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`be searched. We've provided draft search terms for certain
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`categories of documents, and we've also agreed to cap our
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`initial requests at 4,500 unique hits.
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`In response to that, LG told us it would not produce the
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`underlying technical documents we are entitled to, it would not
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`agree to do any ESI searches and it would not even provide us
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`with any hit counts.
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`So with that in place, if it's okay with Your Honor, I'd
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`like to move on to the specific categories and address them one
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`by one.
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`THE COURT: That's fine.
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`MR. SEIGEL: Okay. Thank you, Your Honor.
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`The first issue concerns LG's accused servers. As we
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`stated in our infringement contentions, certain of the claims
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`are infringed by actions that are taken by what are called OTA
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`servers. And these are servers that deliver software updates
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`to the phones and TVs, the accused devices.
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`We have always taken the position that these actions are
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`taken by LG, but LG has contended that it believes LG does not
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`directly infringe claims that involve OTA servers because third
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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 91 Filed 08/12/20 Page 6 of 35
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`parties and not LG control those servers.
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`With the Court's help, we have been attempting to discover
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`information about those third parties and the nature of LG's
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`relationships with them. Specifically, per the Court's order
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`at the July 7 hearing, LG has now identified the names of the
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`third parties it claims are responsible for managing the
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`servers in question. It's also produced its contracts with two
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`of these entities, LG CNS Korea and LG CNS America.
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`We've reviewed those contracts, and while they indicate to
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`us that the defendants direct and control the actions at issue,
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`LG has told us that it intends to dispute that fact.
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`As such, what we want from LG are its communications with
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`these third parties related to these contracts and any actions
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`that LG took related to making the accused OTA updates
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`available.
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`We also want purchase orders or statements of work or
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`other specific requests for services related to these OTA
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`updates, pursuant to the contract that they produced and/or
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`that describe their relationships between the defendant LG
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`entities and these separate third-party LG CNS entities.
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`When I asked LG for this information and explained that
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`ESI might be the best way to produce it, LG asked me why the
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`quote/unquote normal discovery process was inadequate. I told
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`LG that if normal discovery would result in LG's producing
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`documents showing how these contracts were performed,
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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 91 Filed 08/12/20 Page 7 of 35
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`specifically as relating to the OTA update process, ESI may be
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`unnecessary. But LG never agreed to produce such information,
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`whether through quote/unquote normal discovery or otherwise.
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`At this point, you know, we feel like we can't really
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`wait -- afford to wait any longer and we need to know what
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`information exists so that we can decide whether and what kind
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`of additional discovery we need from these third parties, at
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`least one of which is a foreign company.
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`We thus are asking the Court to order LG to immediately
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`provide these documents. And to confirm that LG does so, we're
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`also asking that the Court order LG to produce a set of
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`documents pursuant to ESI search terms, which we're more than
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`happy to work with LG to finalize them. And of course this
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`would be subject to the global cap of 4,500 documents that I
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`mentioned at the outset of my presentation today.
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`And I could stop there or go on to the next category. I
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`assume it's probably --
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`THE COURT: Let me stop you there for just -- ask you this
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`one question. Is there -- and then I'll hear from LG's
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`counsel. Is there any question in your mind whether or not
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`there is a meeting of the minds between you and LG on this one
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`category of what document it is that you're looking for and
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`want?
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`It's interesting, sitting on this side of the bench. You
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`know, often people will come and say we would like these
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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 91 Filed 08/12/20 Page 8 of 35
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`documents, and then when I try to drill down, it's not
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`necessarily clear that the parties are on the same page with
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`it. So if I were to grant your request on Category No. 1, do
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`you think there's a meeting of the minds between you and LG
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`with respect to the documents that you're seeking?
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`MR. SEIGEL: Your Honor, I think there is. We had a
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`relatively lengthy meet and confer about this particular issue
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`in which I explained that what we were looking for was
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`communications and materials that reflect the day-to-day
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`performance of the contracts that LG has produced to us, and
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`the custodians that we've identified for them in our ESI
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`proposal to them were specifically directed at identifying, you
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`know, one custodian from LG Electronics and one custodian from
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`LG USA that were responsible for dealing with the management or
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`oversight of these contracts.
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`So I think -- you know, LG can correct me if I'm wrong,
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`but I think we've had a relatively, you know, lengthy and
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`detailed discussion about what it is that we're looking for.
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`And at this point I think LG has just not indicated that it's
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`willing to provide us what we're asking.
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`THE COURT: Okay. I got that sense as well.
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`Let me hear from LG as to why they don't feel like they
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`need to produce these documents.
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`MR. CARTER: Judge, Winn Carter for LG.
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`THE COURT: Yes, sir.
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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 91 Filed 08/12/20 Page 9 of 35
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`MR. CARTER: The documents are -- I mean, as you can see
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`that the request is quite broad that they're asking for. LG
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`CNS contracts have been produced by LG. And as Mr. Seigel
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`said, based upon his review of those contracts, he believes
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`that the process is controlled by LG CNS. So he has the
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`information based upon his own review of the contracts that he
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`believes he needs to prove his case.
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`Trying to obtain ESI discovery going back at least --
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`these products go back to 2012. So we're looking at eight
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`years worth at this point, or at least six years worth of
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`documents. And their search terms, if you want to get into the
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`ESI, I mean, looking at their search terms for documents, it
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`would be a wide range in net of information that they are
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`seeking.
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`We've produced, we've searched for documents that are the
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`scope of work documents. We've produced at least what we've
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`been able to locate. Further search is ongoing, and if those
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`documents are collected or found, they will be produced. But
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`we produced the LG CNS contracts.
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`And looking at types of documents that they're now
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`seeking -- and this has all been part of over -- well, several
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`hundred thousand pages of documents produced, Your Honor,
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`through this discovery process. So it's not like they don't
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`have the information available to them to make their case.
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`The materials that they're now seeking go into the
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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 91 Filed 08/12/20 Page 10 of 35
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`day-to-day performance of activities. That's what they're
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`asking for. And if we looked for day-to-day performance of
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`activities going for a period of six years or more, that's
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`going to be a substantial burden on LG to have to produce that
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`type of document -- those types of documents.
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`They have the contracts. They've subpoenaed LG CNS, and I
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`understand LG CNS has responded. So those types of documents,
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`they're looking at it from both ends. If LG CNS has more
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`documents, then they can -- they'll be able to obtain them from
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`LG CNS, but at this point LG has examined the request that was
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`initially made for contracts of statement of worth. They
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`responded to that request, and they've made a concerted effort
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`to try to respond appropriately to this request and have
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`conducted a reasonable search inquiry to meet those terms.
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`THE COURT: Mr. Seigel?
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`MR. SEIGEL: Thank you, Your Honor. I just have two very
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`quick points.
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`The first is that if LG is willing to stipulate that it
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`controls the OTA servers in question, I think we're more than
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`happy to dispense with further discovery on this issue. We can
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`put it behind us, and we can, you know, move on to other
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`things.
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`The concern that we have of course is that LG has
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`indicated in its conversations with us that it very much
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`intends to dispute its control over these servers. And as a
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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 91 Filed 08/12/20 Page 11 of 35
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`result, because it would -- you know, then becomes our burden
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`of proof to demonstrate infringement, we need to show with
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`specificity LG's direction and control over these servers and
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`the entities that control them.
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`And so, you know, I think as long as this issue remains in
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`play, by virtue of LG's decision to contest it, we need
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`evidence to support and to make our case in chief.
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`The second concerns the total number of, you know,
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`documents at issue. We are asking for what is a very narrow
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`number of documents. And just for context, LG has produced
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`approximately 2,000 documents in this litigation to date. That
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`is, for comparative purposes, less than one percent of the
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`amount of documents that Samsung has produced in the related
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`case. So LG has really not gone to an extensive, you know,
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`burdensome production in the documents it has given us, many of
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`which consist of product manuals that are produced as a matter
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`of course for the accused products at issue.
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`So like I said at the beginning, we are very much willing
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`to work with LG to ensure that the ESI searches we are asking
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`for are narrowly tailored. And as a result of that process, we
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`would of course negotiate search terms and try to work
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`cooperatively with LG to ensure that this is not a burdensome
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`process.
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`THE COURT: Mr. Carter, Mr. Seigel says that if you will
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`make a stipulation, you won't have to do all that discovery,
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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 91 Filed 08/12/20 Page 12 of 35
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`otherwise they need it. What do you say in response to that?
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`MR. CARTER: Your Honor, the discovery that they have and
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`that we provided to them, the LG CNS contracts, are the
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`contracts that Mr. Seigel has said prove to him that we
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`control. So he needs nothing further. He's got the
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`information that he needs.
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`And as far as the 2,000 documents that he says that we
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`produced, he doesn't tell you the number of pages of documents
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`that we produced, because the number of those documents are the
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`spreadsheets that contain many months -- a broad range of
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`information concerning the OTA update process, carrier
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`requirements, all the information that they are looking for and
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`seeking here.
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`And as far as the LG CNS contracts are concerned, that
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`information has been provided. They've got the information
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`that they need. And now to go on a fishing expedition to go
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`through day-to-day updates by some sort of ESI process is --
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`it's extremely burdensome to LG to account for that.
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`THE COURT: Well, but you avoided my question, which is,
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`Mr. Seigel has suggested there is a way out of this discovery,
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`which is for you to make a stipulation that would obviate the
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`need for that discovery. So I'm trying to find out on the
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`record if you are willing -- but before I were to order you to
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`24
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`do something you say is very burdensome to LG, you know, you
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`25
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`are not -- I take it you are not willing to enter that
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`
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`Case 1:20-cv-00034-ADA Document 91 Filed 08/12/20 Page 13 of 35
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`13
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`stipulation, correct?
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`MR. CARTER: Well, I don't have the authority to enter
`
`into that stipulation, Your Honor. I mean, I could discuss
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`that with my client, but...
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`THE COURT: Well, then why don't -- Mr. Carter, then why
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`don't we do this? You can tell your client that my order would
`
`be that I would allow the plaintiff to have this discovery;
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`however, I'll give you a couple of days, a day or two, to
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`discuss with your client whether or not they want to enter a
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`1 2 3 4 5 6 7 8 9
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`stipulation that would obviate the need for the discovery. If
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`they do, it's a win-win situation. There'll be none of this
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`12
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`burdensome discovery. If they don't, then you can tell them
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`that the Court is going to allow the plaintiff to have the
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`discovery, because I'm going to allow the discovery -- I'm
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`15
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`going to allow the plaintiff to prove up their case and
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`16
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`Mr. Seigel is telling me he needs this information.
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`17
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`Now, it sounded to me, Mr. Seigel, though, like you --
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`18
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`there still might be a little work to be done between you and
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`19
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`Mr. Carter in narrowing what it was you were seeking, and
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`20
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`obviously I would admonish you all to get that done as quickly
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`as possible. If you can't get that done by agreement, after
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`Mr. Carter has had an opportunity to speak with LG, please
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`don't hesitate to contact the Court, and I'll help you narrow
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`24
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`things down in that regard as well.
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`25
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`So, Mr. Seigel, what was the second issue that you had?
`
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`
`
`Case 1:20-cv-00034-ADA Document 91 Filed 08/12/20 Page 14 of 35
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`14
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`MR. CARTER: Your Honor, in connection -- excuse me, Your
`
`Honor. In connection with the -- with the proposed
`
`stipulation, our primary contact at LG, the one who's been
`
`involved hands-on with this case, is out of the office and will
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`not be back into the office until Thursday, Korea time. So if
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`we could have until late this week or early next to address
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`this proposal, I would appreciate it.
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`THE COURT: Well, Mr. Carter, I would much prefer that you
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`work that out, and I'm optimistic that you will. However, I
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`1 2 3 4 5 6 7 8 9
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`want you to understand that if I give you -- and I will give
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`you the benefit of reasonable request. I'll give you until the
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`12
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`end of the -- until -- my recollection is Asian clients work
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`pretty much seven days a week. That was my experience when I
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`14
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`was representing them. So their weekday -- I remember my
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`15
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`Friday nights were spent often talking to folks in Asia on
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`Saturdays.
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`17
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`So by Saturday I'm going to expect you to tell Mr. Seigel
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`18
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`whether or not you are going to stipulate to this. If -- but
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`19
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`the -- here's the downside: If you cannot stipulate to it,
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`20
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`then you're going to have to work that much harder to make sure
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`21
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`that this information gets produced in a timely manner.
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`22
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`I don't know what that really means. I don't know,
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`23
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`between the parties, what it will take you to get this done.
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`24
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`I'm just saying that I am willing to give you through Saturday
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`25
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`to get the stipulation.
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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 91 Filed 08/12/20 Page 15 of 35
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`15
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`But failing that, I understand I'm kind of burning a week
`
`of time when LG could be collecting this information. So that
`
`will have to be made up somewhere. So -- but, yeah -- yes,
`
`sir?
`
`MR. CARTER: Oh, excuse me. I didn't mean to interrupt
`
`you.
`
`THE COURT: Oh, no. That's the problem with talking on
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`the phone. But, yes. You have -- LG has until Saturday.
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`MR. CARTER: Thank you, Your Honor. I think the best way
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`1 2 3 4 5 6 7 8 9
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`10
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`to approach it, though, would be for us to work on two fronts
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`11
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`in light of your order -- in light of your order, and we'll do
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`that.
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`13
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`14
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`THE COURT: Okay.
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`MR. SEIGEL: Thank you, Your Honor. This is Mr. Seigel
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`15
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`again. I'll move on to the second category of documents, which
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`16
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`is technical materials relating to and describing the accused
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`17
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`functionality.
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`This category, Your Honor, is quite frustrating to us
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`19
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`because the Court's scheduling order required LG to produce by
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`20
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`February 3rd, quote -- and I'm quoting from the scheduling
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`21
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`order, quote, technical documents, including software where
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`22
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`applicable, sufficient to show the operation of the accused
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`23
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`products, end quote.
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`24
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`We are now presently six months past that deadline, and LG
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`25
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`has not yet produced a single technical document or manual
`
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`
`
`Case 1:20-cv-00034-ADA Document 91 Filed 08/12/20 Page 16 of 35
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`16
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`relating to the accused OTA functionality despite our repeated
`
`requests for these materials. And I can provide examples of
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`what I'm talking about, which I've also given to LG.
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`One is that some of LG's phones rely on third-party code
`
`to perform OTA updates, including code from Google and from
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`other third-party software providers that are incorporated into
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`LG's devices like update or software.
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`LG has not produced a single manual related to such
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`third-party code, which my experts have told me LG must have in
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`1 2 3 4 5 6 7 8 9
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`order to know how to and determine how to integrate this
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`third-party code into its own code.
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`12
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`As another example, some LG phones also use LG's own
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`13
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`proprietary OTA functionality, but LG has not produced a single
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`14
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`document such as a manual, a technical specification or
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`15
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`internal discussions on message boards, Slack channels,
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`16
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`internal wikis or what have you, that explain how this code
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`17
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`works or how it's structured. And this is, again, something
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`18
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`that our experts tell us that LG must have; otherwise, its
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`19
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`programmers would have to start from scratch each time LG
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`20
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`develops a new product or hires a new programmer or engineer.
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`21
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`Initially LG agreed to look for this information, but in
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`22
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`our latest round of discussions, LG has sort of changed its
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`23
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`mind and told us that it wouldn't look for any technical
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`24
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`documents because source code is -- source code, excuse me, is,
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`25
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`quote, the best representation of the operation of the accused
`
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`
`
`Case 1:20-cv-00034-ADA Document 91 Filed 08/12/20 Page 17 of 35
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`17
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`devices, end quote.
`
`And they said that they wouldn't produce anything beyond
`
`the source code. That's in my Exhibit 1 on Page 8 in the blue
`
`rectangle.
`
`That's not right. As I explained to LG repeatedly in our
`
`meet and confers, these technical documents explain the
`
`functionality in ways that the code itself might not reveal.
`
`And we also expect that technical documents can tie together
`
`code from just different products, showing that they operate in
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`1 2 3 4 5 6 7 8 9
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`10
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`the same manner or share certain common characteristics.
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`11
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`Our view is that LG cannot unilaterally decide that we are
`
`12
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`not entitled to this basic and highly relevant evidence which
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`13
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`they were already ordered to produce by February 3rd. Given
`
`14
`
`how long we've been waiting for these documents, we ask that
`
`15
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`the Court order LG to produce, by a week from today, all
`
`16
`
`technical documentation showing the operation of OTA updates on
`
`17
`
`the accused devices.
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`18
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`And because we need to make sure that LG is doing so, we
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`19
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`are also asking that LG be ordered to identify one to two
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`20
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`custodians who oversee the development of OTA functionality on
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`21
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`one or more of the accused devices so that we can provide a set
`
`22
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`of search terms to run to make sure that we're getting the
`
`23
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`technical documents that they actually use when building out
`
`24
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`this functionality. And of course this, again, would be
`
`25
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`subject to the global cap that we proposed of 4,500 unique
`
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`
`
`Case 1:20-cv-00034-ADA Document 91 Filed 08/12/20 Page 18 of 35
`
`18
`
`hits.
`
`THE COURT: Mr. Carter?
`
`MR. CARTER: Yes, Your Honor. We have produced the source
`
`code. We've made it available to them. The source code is the
`
`best information regarding how the phone operates, how the OTA
`
`update process operates. Requiring us now to provide
`
`additional technical information spanning -- I believe the
`
`product count is upwards of 100 additional technical manuals
`
`when the code itself has been produced is extremely burdensome,
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`1 2 3 4 5 6 7 8 9
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`10
`
`and -- to LG to collect that information for a period of now
`
`11
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`six plus years and to produce that information. And then to do
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`12
`
`it -- I think he's asking also for an ESI search in conjunction
`
`13
`
`with that. That's extremely burdensome to LG and is not
`
`14
`
`appropriate when the code is available for them to review, the
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`15
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`Google code has been made available to them, other third-party
`
`16
`
`code has been available to them, if there is other third-party
`
`17
`
`code involved. That information is out there for them to
`
`18
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`review.
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`19
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`That source of information, and that's -- and going beyond
`
`20
`
`that would be an unreasonable process for us to undertake.
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`21
`
`THE COURT: Yeah. You've said several times it'd be
`
`22
`
`incredibly burdensome. What -- why do you say that?
`
`23
`
`MR. CARTER: Well, as I mentioned, it's -- it involves 100
`
`24
`
`products. It would be a number of engineers, I want to say
`
`25
`
`upwards of 100 engineers, that we would have to go to and
`
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`
`
`Case 1:20-cv-00034-ADA Document 91 Filed 08/12/20 Page 19 of 35
`
`19
`
`discuss this issue with them when available -- when the source
`
`code has been made available to them and they have reviewed it.
`
`If there's some specific issue that comes up in the review
`
`of the source code, then we can address that, but just to have
`
`us now produce all of these technical manuals, all of these
`
`technical documents that they're talking about, that would be a
`
`broad range of discovery, Your Honor, covering hundreds of
`
`products involving many years of development.
`
`THE COURT: Mr. Seigel, Mr. Carter says it would take 100
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`1 2 3 4 5 6 7 8 9
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`10
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`engineers and an enormous amount of work. What say you?
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`11
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`MR. SEIGEL: Thank you, Your Honor. You know, two things
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`12
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`I would like to say in response.
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`13
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`The first is that I'm not sure -- you know, we are
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`14
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`obviously not in the position of being able to speak directly
`
`15
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`with LG's clients. But in our discussions with our engineers,
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`16
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`our understanding is that functionality or, you know, programs
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`17
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`that are developed for particular devices oftentimes have
`
`18
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`generic technical documents that specify how code is to be
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`19
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`implemented in a variety of instantiations.
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`20
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`So even though there may be, you know, over 100 accused
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`21
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`products, the types of technical documents that we're looking
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`22
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`for are the types that explain how source code is implemented
`
`23
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`or to be executed in the actual code itself.
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`24
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`And as we've explained to LG, even though source code
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`25
`
`explains what's happening from a very technical perspective,
`
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`
`
`Case 1:20-cv-00034-ADA Document 91 Filed 08/12/20 Page 20 of 35
`
`20
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`the way that you can describe and understand how a process or a
`
`product works is through flowcharts, graphical illustrations
`
`and narrative text that explains what the source code is
`
`intended to do, which is typically captured in the types of
`
`manuals and specifications I'm referring to.
`
`Now, I don't know that, you know, there's only a single
`
`set of manuals for all, you know, 100 or so products that we've
`
`accused, but I do suspect that there's a common core of manuals
`
`that are central to the development of this functionality and
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`1 2 3 4 5 6 7 8 9
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`10
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`that with a little bit of conversation and work with the
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`11
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`engineers, LG should be able to isolate and identify those. So
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`12
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`that's one thing.
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`13
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`And the second thing I would say is that LG's deadline to
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`14
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`produce this was in February, and if LG had concerns or wanted
`
`15
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`to speak with us about how to cooperatively address this
`
`16
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`technical information, these manuals, which it was ordered to
`
`17
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`produce, the time to do that would have been in January and
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`18
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`February of that year so that we could have worked through this
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`19
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`process.
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`20
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`Now we're coming up on a few months away from the end of
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`21
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`fact discovery, and we still have not received even a single
`
`22
`
`technical manual from LG nor do we even have the source code
`
`23
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`review computers that we need to complete our review of the
`
`24
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`source code.
`
`25
`
`So we're in a bit of a pinch here, and I think, you know,
`
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`
`
`Case 1:20-cv-00034-ADA Document 91 Filed 08/12/20 Page 21 of 35
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`21
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`we're more than happy to continue to discuss the types of
`
`information that we're looking for, but I believe we've given
`
`LG more than sufficient information for what it is that we want
`
`and are entitled to at this point in the process.
`
`THE COURT: Yeah. Mr. Carter, my -- I am concerned here
`
`that this -- at least some of this should have been either
`
`produced in February or told to me why it was burdensome and
`
`could not be, and here we are in August. What do you say to
`
`that?
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`1 2 3 4 5 6 7 8 9
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`10
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`MR. CARTER: Well, number one, Judge, the code -- the code
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`11
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`is the subject of the February order, the source code, because
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`12
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`that's the best representation of how the functionali
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