Case 6:19-cv-00532-ADA Document 98 Filed 10/09/20 Page 1 of 12
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`IN THE UNITED STATES DISTRICT COURT
`FOR WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`Uniloc 2017 LLC,
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`Plaintiff
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`v.
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`Apple Inc.,
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`Defendant
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`
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`Case No. 6:19-cv-532-ADA
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`PATENT CASE
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`Jury Trial Demanded
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`§
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`PLAINTIFF UNILOC 2017 LLC’S RESPONSE TO
`APPLE’S MOTION FOR PROTECTIVE ORDER (DKT. NO. 96)
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`Case 6:19-cv-00532-ADA Document 98 Filed 10/09/20 Page 2 of 12
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`I.
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`INTRODUCTION
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`Uniloc 2017 LLC respectfully requests that the Court deny Apple’s Motion for Protective
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`Order (“Motion”) (Dkt. No. 96). Apple seeks protection from discovery on the ground that
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`Uniloc’s requests for production and interrogatories contain multiple discrete subparts that,
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`according to Apple’s count, exceeds the limits set out in the Order Governing Proceedings (Dkt.
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`No. 11). Apple’s Motion, which was also untimely filed, should be denied because each of the
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`subparts it identifies are logically and factually subsumed within Uniloc’s discovery requests.
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`Apple’s numerosity objection improperly counts specific examples provided in Uniloc’s
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`requests as discrete subparts. Uniloc went out of its way to provide these specific examples of the
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`types of documents and responses it expects to receive from Apple. This was done to avoid
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`Apple’s often employed tactic of responding that it does know what discovery Uniloc is requesting.
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`Apple devotes a substantial portion of its Motion lamenting the “harras[ment]” it has supposedly
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`endured from Uniloc. While Uniloc, of course, disagrees with and rejects these accusations, they
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`are ultimately irrelevant to the presented issue and only act to distract from the merits. What
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`matters here, and what Uniloc decided to focus on, is the fact that specific examples logically
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`related to a topic of discovery are not discrete subparts. Apple’s Motion should, accordingly, be
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`de denied.
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`II.
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`FACTUAL BACKGROUND
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`
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`Uniloc served its Second Set of Interrogatories and Second Set of Requests for Production
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`(collectively, “Uniloc’s Second Set of Discovery Requests”) on August 4 and its Third Set of
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`Interrogatories and Third Set of Requests for Production (collectively, “Uniloc’s Third Set of
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`Discovery Requests”) on August 21.
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`Uniloc’s Response to Apple’s Motion for Protective Order
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`1
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`Case 6:19-cv-00532-ADA Document 98 Filed 10/09/20 Page 3 of 12
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`In these requests, Uniloc made a request regarding content delivery networks (“CDNs”)
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`along with specific examples of the types of documents Uniloc believed to be responsive.
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`Specifically, Request for Production No. 53 seeks “[a]ll documents relating to each [CDN]” used
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`by Apple since 2007, and the specific examples of responsive information are:
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`[1] presentations, flow charts, logical and physical maps, reports, summaries, data
`flows, white papers, agreements, contracts, diagrams, specifications, spreadsheets)
`that describe, identify, or show the logical and physical location, architecture, and
`layout of each CDN and its servers, nodes, cache locations, and data centers;
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`[2] the processes, steps, and procedures used to provide the functions of storage,
`distribution, and/or downloading of software in each CDN; the flow of data relating
`to the storage, distribution, downloading, and sale (including in-app purchases) of
`software (e.g., apps, operating systems, updates thereto) that is to, from, within,
`between, and among any and all CDNs and App Store-related servers in the United
`States and worldwide;
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`[3] Apple’s agreements with each third-party CDN provider (e.g., Akamai, Level
`3, Limelight, etc.);
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`[4] revenue and costs related to each CDN; and
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`[5] the processes, data flow, and extent to which any CDN based in whole or in part
`in the United States is involved in the storage, distribution, and/or downloading of
`software (e.g., apps, operating systems, updates thereto) pertaining to the App Store
`(including Mac App Store, TV App Store, and Watch App Store), the Accused
`Functionality, and/or the updating or reconfiguring of applications (including
`operating systems) via or by the Accused Instrumentalities.
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` Exh. A, Uniloc’s Second Set of Requests for Production, at 20–21 (Request for Production No.
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`53) (numbering added); see also Exh. B, Uniloc’s Second Set of Interrogatories, at 15–17
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`(Interrogatory No. 19). Apple contends that these five examples, together with the general request,
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`constitute six separate requests for production. Dkt. No. 96-11, at 19–20.
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`Uniloc similarly requested information on patent agreements and licenses between Apple
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`and Koninklijke Philips Electronics N.V. (“Philips”), the original assignee and owner of the ’088
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`Patent. Specifically, Interrogatory No. 21 provides, in pertinent part:
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`Uniloc’s Response to Apple’s Motion for Protective Order
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`2
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`Case 6:19-cv-00532-ADA Document 98 Filed 10/09/20 Page 4 of 12
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`Identify and describe each agreement, offer, settlement, or transaction involving the
`licensing or purchase of patents between You and [Philips], relating to any
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`[1] Philips Technology;
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`[2] U.S. Patent No. 6,467,088 and related patent applications;
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`[3] the Accused Products; the Accused Functionality;
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`[4] any technology that You believe is technologically comparable to the ’088
`Patent; and
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`[5] any technology that You believe is relevant to a Georgia-Pacific analysis or an
`apportionment analysis in this case.
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`Exh. C, Uniloc’s Third Set of Interrogatories, at 8 (numbering added). Apple believes this
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`interrogatory contains five different subparts, counting each specific type of exemplary agreement
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`as a separate interrogatory. Dkt. No. 96-11, at 20–21. In other words, Apple is arguing that the
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`specific topic of patent licenses between Apple and Philips that relate to the Accused Products is
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`(somehow) not factually subsumed within the general topic of patent licenses between Apple and
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`Philips. See id.
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`
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`The remainder of Uniloc’s discovery requests followed a similar format as the ones
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`identified above: a narrow request for specific subject matter with examples of the type of
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`information falling within that subject matter to avoid any confusion as to what information Uniloc
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`sought.
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`After Apple refused to provide full discovery to Uniloc’s Second and Third Set of
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`Discovery Requests, the parties met and conferred on August 25, 2020 and October 1, 2020. Apple
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`did not mention on either call that it would file a Motion for Protective Order. Apple filed its
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`Motion on October 2, 2020.
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`Uniloc’s Response to Apple’s Motion for Protective Order
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`3
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`III. LEGAL STANDARD
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`To determine whether, under Rule 33,1 “discrete subparts” exist, “most courts follow the
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`related question approach.’” Superior Sales W. Inc. v. Gonzalez, No. EP-19-CV-329-KC, 2020
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`U.S. Dist. LEXIS 94740, at *14 (W.D. Tex. May 27, 2020) (quoting Moser v. Navistar Int’l Corp.,
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`No. 4:17-cv-598, 2018 U.S. Dist. LEXIS 127007, at *6 (E.D. Tex. July 27, 2018)). “One
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`articulation of the inquiry is that where one interrogatory can be separated into multiple questions,
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`‘subparts that are logically or factually subsumed within and necessarily related to the primary
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`question should not be treated as separate interrogatories.’” Id.
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`IV. ARGUMENT
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`A.
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`Apple’s Motion Is Untimely
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`“A motion for a Rule 26(c) protective order is not timely if it is filed after the date or time
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`set for the discovery at issue.” Orchestrate HR, Inc. v. Trombetta, No. 3:13-cv-2110-P, 2015 U.S.
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`Dist. LEXIS 46045, at *4–5 (N.D. Tex. Apr. 8, 2015). Apple filed its Motion on October 2, 2020,
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`after the response deadline for each of Uniloc’s sets of discovery requests:
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`Date
`Document Title
`Served
`5/4/20
`Uniloc’s First Set of Interrogatories (Nos. 1–11)
`Uniloc’s First Set of Requests for Production (Nos. 1–43) 5/4/20
`Uniloc’s Second Set of Interrogatories (Nos. 12–20)
`8/4/20
`Uniloc’s Second Set of Requests for Production (Nos.
`44–56)
`Uniloc’s Third Set of Interrogatories (Nos. 21–22)
`Uniloc’s Third Set of Requests for Production (Nos. 57–
`58)
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`8/4/20
`8/21/20
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`8/21/20
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`Response
`Deadline
`6/3/20
`6/3/20
`9/3/20
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`9/3/20
`9/21/20
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`9/21/20
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`Set
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`First
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`Second
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`Third
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`1 Unless indicated otherwise, the term “Rule” as used throughout this Response refers to the
`Federal Rules of Civil Procedure.
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`Uniloc’s Response to Apple’s Motion for Protective Order
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`Apple’s Motion is untimely, and Apple does not attempt to establish good cause for its
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`delay. The facts also show that Apple lacked good cause. Uniloc did not agree to extend the
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`deadline for Apple to move for a protective order, as Apple never mentioned that it would move
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`for a protective order—not in its August 18, 2020 correspondence, not on the August 25, 2020
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`meet-and-confer call, and not on the October 1, 2020 meet-and-confer call. Apple could have
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`moved in advance of the September deadlines for Uniloc’s Second Set of Discovery Requests.
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`And Apple did not even raise an issue with the First Set of Discovery Requests until September 1,
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`2020—nearly three months after the deadline to respond to those Requests.
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`The Court would be well within its discretion to deny Apple’s Motion on timeliness alone.
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`See, e.g., Ring Plus, Inc. v. Cingular Wireless, LLC, No. 2:06CV159, 2007 U.S. Dist. LEXIS
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`102190, at * 6 (E.D. Tex. July 24, 2007) (finding denial of an untimely motion for protective order
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`appropriate when movant failed to show good cause). And it does not matter that Uniloc and
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`Apple continued to meet-and-confer on these issues in the context of Uniloc’s Motion to Compel
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`(which Uniloc timely raised) when Apple itself never even mentioned it would file a Motion for
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`Protective Order. See E. Coast Test Prep, LLC v. Allnurses.com, Inc., No. 15-3705 (JRT/ECW),
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`2018 U.S. Dist. LEXIS 224307 (D. Minn. Dec. 11, 2018) (“Even if Plaintiff failed to adequately
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`explain why they needed the [discovery] or refused to meaningfully limit their [requests], it was
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`incumbent upon Defendants to seek protection from the Court through a timely motion.”).2
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`2 Indeed, Apple’s Certificate of Conference is silent on Apple’s relief of a Protective Order. It
`simply states that “Apple has conferred with counsel for Uniloc in a good-faith effort to resolve
`the matter presented herein,” Mot. at 11 (emphasis added), which was in connection with Uniloc’s
`Motion to Compel.
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`Uniloc’s Response to Apple’s Motion for Protective Order
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`1. Waived Objections
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`Also, for Requests for Production No. 22 and 39, Apple failed to include in its response a
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`specific objection based on the purported existence of discrete subparts. Exh. D, Apple’s
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`Responses to Uniloc’s First Set of Requests for Production, at 25–26 and 41–42. Apple, thus,
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`waived these objections. See Morris v. Sorenson, No. MO-16-CV-00071-KC, 2017 U.S. Dist.
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`LEXIS 224482, at *4 (W.D. Tex. Dec. 14, 2017) (finding waiver of untimely objections to written
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`discovery).
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`B.
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`Uniloc’s Discovery Requests Do Not Exceed the Permissible Limits
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`
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`Apple contends that Uniloc’s Interrogatories Nos. 1, 3, and 12–22 and its Requests for
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`Production Nos. 22, 39, 44–45, 47–50, 53, 55, and 57 contain discrete subparts. Mot. at 6. Apple
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`is incorrect. Each subpart identified by Apple is “logically or factually subsumed within and
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`necessarily related to the primary question” and should, therefore, not be treated as separate
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`interrogatories. See Superior Sales W., 2020 U.S. Dist. LEXIS 94740, at *14. Inspection of the
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`examples used by Apple in its Motion—Interrogatory No. 19 and Request for Production No. 44—
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`demonstrate this point.
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` The “primary question” of Interrogatory No. 19 is the request for Apple to “identify and
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`describe fully every content delivery network [“CDN”] . . . that [it has] used since 2007 . . . .” See
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`Exh. B, Uniloc’s Second Set of Interrogatories, at 15–17. Each of the seven subparts identified by
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`Apple seeks particularized information that logically relates to and is subsumed within the
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`overarching primary question. For example, facts showing “the location of all network nodes and
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`servers in the United States and worldwide” logically constitutes a means to “identify and
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`describe” CDNs used by Apple.
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`Uniloc’s Response to Apple’s Motion for Protective Order
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`Whether or not a request to “identify and describe” Apple’s CDN is overbroad, irrelevant,
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`or unduly burdensome is a different analysis and unrelated to the current issue. See
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`Erfindergemeinschaft UroPep GbR v. Eli Lilly & Co., 315 F.R.D. 191, 197 (E.D. Tex. 2016)
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`(Discreteness “turns on a case-by-case assessment of the degree to which the subpart is logically
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`related to the primary question in the interrogatory . . . .”) (emphasis added). Here, it is as simple
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`as recognizing that “the location of . . . servers” are facts that logically “describe” CDNs.
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`The answer is the same in regard to Uniloc’s Request for Production No. 44. For this
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`request,
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`the “primary question” calls
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`for documents
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`reflecting “[Apple’s]
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`financial
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`relationship . . . with any [patent licensing] entity . . . .” See Exh. A, Uniloc’s Second Set of
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`Requests for Production, at 11–12. Logically encapsulated in this general request are each subpart
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`identified by Apple, such as the subpart: “documents reflecting any advice or instructions that
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`Apple has provided to any Licensing Entities relating to patent licensing or patent enforcement
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`activities.” See id.
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`The one case Apple relies on to show the existence of discrete subparts—
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`Erfindergemeinschaft—actually supports Uniloc’s argument. See Erfindergemeinschaft, 315
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`F.R.D. at 199. In that case, the Court found that an interrogatory seeking “the detailed description
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`of three patent applications . . . and the description of the testing for those applications” contained
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`no discrete subparts. Id. Apple would disagree. For instance, Uniloc’s Request for Production
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`No. 39 reads: “All documents concerning the use, design, implementation, performance, benefits,
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`advantages, and importance of updating or reconfiguring applications (including operating
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`systems) in or relating to the Accused Instrumentality or Accused Functionality.” Exh. D, Apple’s
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`Responses to Uniloc’s First Set of Requests for Production, at 41. Apple contends that this
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`constitutes two separate requests, believing “benefits” and “importance” must be separated from
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`Uniloc’s Response to Apple’s Motion for Protective Order
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`Case 6:19-cv-00532-ADA Document 98 Filed 10/09/20 Page 9 of 12
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`“design” and “implementation.” Dkt. No. 96-11, at 9. But both of these categories of information
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`logically and factually relate to the “use” of the Accused Functionality, and to say otherwise
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`conflicts with Erfindergemeinschaft and would have required that Court to find that the “testing”
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`relating to patent applications is not factually related to a “description” of the applications
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`themselves. See Erfindergemeinschaft, 315 F.R.D. at 199.
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`Further, discovery requests of a nature comparable to Uniloc’s have been found by other
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`district courts to lack discrete subparts. For instance, in Synopsys, Inc. v. Atoptech, Inc., the district
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`court found no discrete subparts in an interrogatory that was propounded against a defendant in a
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`patent infringement suit and sought “information about each accused instrumentality . . . including
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`the number of units made, used, sold, licensed, or offered for sale, the revenue realized, the cost
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`of goods sold, the profit realized, and the personal knowledge about [defendant’s] response”). 319
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`F.R.D. 293, 298 (N.D. Cal. 2016). Again, Apple would have reached a different result, as shown
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`by its belief that Uniloc’s Request for Production No. 22 contains four discrete subparts. Dkt. No.
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`96-11, at 5. This Request, however, is materially the same to the one in Synopsys, reading: “All
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`documents pertaining to the use, design, development, performance, features, benefits,
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`deployment, implementation, training, sale/license, and offer for sale/license of the Accused
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`Instrumentalities or the Accused Functionality by Your channel partners, app developer partners,
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`and technology partners.” Exh. D, Apple’s Responses to Uniloc’s First Set of Requests for
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`Production, at 25.
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`As shown, Apple is not drawing its conception of when information is factually and
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`logically subsumed within a request from the comparable caselaw, which it largely neglects to cite
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`in its Motion. Instead, Apple uses a standard that has been contrived to frustrate discovery and is
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`incompatible with the relevant precedent. See Powell v. Home Depot USA, Inc. No. 07-80435-
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`Uniloc’s Response to Apple’s Motion for Protective Order
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`Civ, 2008 U.S. Dist. LEXIS 49144, at *7–9 (S.D. Fla. June 16, 2008) (finding no discrete subparts
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`in an interrogatory calling for “a list of names, addresses and telephone numbers of all persons
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`who participated in the design, development, testing, production, manufacturing, marketing,
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`licensing, or sale . . . of the [accused product], as well as the date, nature, and extent of the
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`participation of all such persons.”). It should be rejected.
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`Even Apple’s own discovery conduct contradicts its argument. Each of Apple’s discovery
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`requests would likely be found to contain discrete subparts if held to the same standard as the one
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`Apple is attempting to impose on Uniloc, e.g., Apples Interrogatory No. 4 would contain at least
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`five discrete subparts:
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`[1] Describe with particularity all occasions on which You . . . were offered or
`agreed to license, convey, or acquire any rights in or to the Patent-in-Suit and for
`each instance, [2] identify any Third Party involved in the offeree, the patents
`involved, the dates if the relevant communications [3] the proposed (and if
`applicable, actual) terms or conditions of the proposed or actual license . . . [4] all
`individuals having knowledge regarding the instance, and [5] all Documents
`comprising, referring to, or reflecting the instance.
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`See Exh. E, Apple’s First Set of Interrogatories, at 6–7 (numbering added).
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`Additionally, if Apple’s Motion is granted, the Court would set a bad precedent and reward
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`Apple for its contradictory behavior meant to frustrate basic discovery requests: Apple did not
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`produce full discovery in response to Uniloc’s First Set of Discovery because they were allegedly
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`too broad and now withholds discovery in response to Uniloc’s narrower requests on the basis of
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`numerosity. For this, and the other reasons identified above, the Court should find that Uniloc’s
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`discovery requests contain no discrete subparts. See Erfindergemeinschaft, 315 F.R.D. at 199
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`(interrogatory that could have asked about chemical compounds generally does not become 11
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`separate interrogatories merely because the party propounding the interrogatory listed out the
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`compounds, as “adding specificity in interrogatories is desirable and should not ‘be counted as a
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`Uniloc’s Response to Apple’s Motion for Protective Order
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`separate interrogatory’”) (quoting Ginn v. Gemnini Inc., 137 F.R.D. 320, 321–22 (D. Nev.
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`1991)) (emphasis added).
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`C.
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`Apple Fails to Identify an Argument Applicable to Requests for Production
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`The discrete subpart principle originates from a portion of the advisory committee notes to
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`Rule 33, namely, the portion interpreting the 25-interrogatory-limit imposed by Subsection (a)(1)
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`of the Rule. See FED. R. CIV. P. 33, 1993 Advisory Committee Notes. Apple does not cite any
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`rule or caselaw applying this standard in the context of Rule 34 requests for production. Its own
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`independent legal conclusions of what is “obvious[]” do not carry any weight. See Mot. at 6 n.5.
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`For this additional reason, Apple’s request to strike Uniloc’s Requests for Production Nos. 52–58
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`should be rejected. See United States ex rel. Fisher v. Homeward Residential, Inc., No. 4:12-CV-
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`461, 2016 U.S. Dist. LEXIS 7480, at *12 (E.D. Tex. Jan. 22, 2016) (finding conclusory allegations
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`insufficient to establish the good cause necessary for a protective order).
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`V.
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`CONCLUSION
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`
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`For the foregoing reasons, Uniloc respectfully requests that the Court deny Apple’s
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`Motion, overrule its objections, and order it to respond to Uniloc’s requests.
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`Dated: October 9, 2020
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`Respectfully Submitted,
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`By: /s/William E. Davis, III
`William E. Davis, III
`Texas State Bar No. 24047416
`bdavis@bdavisfirm.com
`Debra Coleman
`Texas State Bar No. 24059595
`dcoleman@bdavisfirm.com
`Christian Hurt
`Texas State Bar No. 24059987
`churt@bdavisfirm.com
`Edward Chin
`Texas State Bar No. 50511688
`echin@bdavisfirm.com
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`Uniloc’s Response to Apple’s Motion for Protective Order
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`Case 6:19-cv-00532-ADA Document 98 Filed 10/09/20 Page 12 of 12
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`Ty Wilson
`Texas State Bar No. 24106583
`Twilson@davisfirm.com
`DAVIS FIRM
`213 N. Fredonia Street, Suite 230
`Longview, Texas 75601
`T: (903) 230-9090
`F: (903) 230-9661
`
`Counsel for Plaintiff Uniloc 2017
`LLC
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`CERTIFICATE OF SERVICE
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`The undersigned certifies that on this 9th day of October, 2020, all counsel of record who
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`
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`are deemed to have consented to electronic service are being served with a copy of this document
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`through the Court’s CM/ECF system under Local Rule CV-5(b)(1). Any other counsel of record
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`will be served by a facsimile transmission and/or first class mail.
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`By: /s/ William E. Davis, III
` William E. Davis, III
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`Uniloc’s Response to Apple’s Motion for Protective Order
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