Ademco Inc. v. TWS Technology LTD et al

Filing 70

ORDER granting 66 Motion for Discovery. TWS's objection is overruled, but Dr. White should be walled off from any information pertaining to Exponent's work with TWS. Of course, if evidence arises that White has improperly used in formation, then that may be grounds for disqualification or other sanctions. And of course, TWS will be able to raise thee issues in deposition and through cross-examination. Along with the signed NDA, this should address any concerns TWS may have. The Clerk of Court is respectfully directed to terminate the motion at ECF No. 66. SO ORDERED. (Signed by Judge Arun Subramanian on 3/10/2025) (ar)

Faris Rashid
[phone] Direct
[e-mail]

February 21, 2025

TWS's objection is overruled, but Dr. White should be walled off from any
information pertaining to Exponent's work with TWS. Of course, if evidence arises
that White has improperly used information, then that may be grounds for
disqualification or other sanctions. And of course, TWS will be able to raise thee
issues in deposition and through cross-examination. Along with the signed NDA,
this should address any concerns TWS may have.

VIA ECF

The Clerk of Court is respectfully directed to terminate the motion at ECF No. 66.
Hon. Arun Subramanian
United States District Court
SO ORDERED.
Southern District of New York
500 Pearl Street, Courtroom 15A
New York, NY 10007
Arun Subramanian, U.S.D.J.
[phone]
Date: March 10, 2025
[e-mail]

Re:

Motion for Resideo’s Expert to Review Confidential Documents - Ademco Inc. d/b/a
Resideo v. TWS Technology et al., Court File No.: 23-cv-08383 (AS)

Dear Judge Subramanian:
Pursuant to Rule 5 of the Court’s Individual Practices in Civil Cases and the parties’
Protective Order (Dkt. No. 58), Plaintiff Ademco Inc. d/b/a Resideo (“Resideo”) respectfully submits
this letter motion to resolve Defendants TWS Technology et al.’s (“TWS’s”) objection to Resideo’s
battery expert, Dr. Kevin White, under the Protective Order.
Resideo retained Dr. White, a Principal Scientist of Polymer Science and Materials
Chemistry with Exponent, as its battery-technology expert. Because TWS did not produce most of
its documents until days before Resideo’s expert report deadline, and given the Protective Order‘s
objection process, Dr. White provided his written opinions based solely on information in
Resideo’s possession.
To disclose Dr. White under the Protective Order and allow him to review documents
produced by TWS designated as “Confidential” or “Attorneys’ Eyes Only,” Resideo must provide:
(1) a Non-Disclosure Agreement signed by Dr. White, (2) Dr. White’s resume, (3) a list of entities
that Dr. White has consulted for during the last four years, along with a description of the subject
matter, and (4) a list of cases in which Dr. White testified as an expert at trial or deposition in the
last four years. (Dkt. No. 58 at 5-6.) After providing these disclosures, TWS has five business days
to object. “If the Parties are unable to resolve any objection,” Resideo “may apply to the Court to
resolve the matter.” (Dkt. No. 58 at 6.) The NDA, along with the Protective Order itself, expressly
limit the use of confidential information to only “this litigation,” and provide that any confidential
information will be returned to the other party at the conclusion of the litigation.
On December 27, 2024, Resideo disclosed Dr. White under Fed. R. Civ. 26(a)(2). Mistaking
Resideo’s disclosure under the Federal Rules as a disclosure under the Protective Order, and
before seeing any disclosures by Dr. White, TWS’s counsel informed Resideo on December 31,
2024, that TWS intended to object to Dr. White “based on Exponent’s prior dealings with

February 21, 2025
Page 2
Defendants, Exponent’s prior access to Defendants’ confidential information, and contact between
Exponent and Defendants regarding the subject matter of this case.”
Though Resideo was still working to obtain Dr. White’s disclosure information, counsel for
the parties met for 30 minutes on January 8, 2025. Lead Trial Counsel Faris Rashid, along with
attorneys Farah Famouri and Michelle Erickson, appeared for Resideo, and Lead Trial Counsel Alex
Patchen and attorney Ari Jaffess appeared for TWS. At the conference, TWS again raised TWS’s
prior work with Exponent. In response, Resideo confirmed that Dr. White had not done any work
for TWS and offered to set up an ethical wall at Exponent. TWS did not take the offer. Changing
course, TWS then stated that it planned to object to Dr. White under the Protective Order based
on Dr. White’s potential bias.
On January 30, 2025, Resideo provided the signed NDA, Dr. White’s resume, and identified
the cases in which Dr. White had testified. However, Exponent prevents Dr. White from disclosing
consulting clients due to work product and confidentiality limitations. Accordingly, Resideo
provided the subject matters about which Dr. White has consulted, without identifying specific
clients. And Resideo again confirmed that Dr. White had never previously consulted with any TWS
entity. TWS responded on January 31, 2025, stating that because no client names were provided,
“the disclosure does not begin the five-day [objection] period.”
On February 4, 2025, Resideo attorneys Famouri and Erickson met with TWS Lead Trial
Counsel Patchen and attorney Jaffess for about 30 minutes to confer on discovery topics, including
Dr. White’s disclosure. TWS again stated that it objected to Dr. White because of his potential bias,
and that it viewed Resideo’s disclosure under the Protective Order as incomplete. As a result, TWS
still believed that it had not triggered the time limit to formally object, holding Resideo in limbo.
On February 20, 2025, Resideo’s Lead Trial Counsel Rashid and attorney Famouri, and
TWS’s Lead Trial Counsel Patchen and attorney Gina Kim, conferred again for about 30 minutes.
Resideo noted that the parties had discussed Dr. White many times and offered to reach a
compromise in which TWS could gain assurance that Dr. White had not worked for a direct
competitor. For the first time in any discussion, TWS asked if Dr. White had previously worked for
Resideo or Honeywell, or for TWS competitors Corun and Lishen. In an email sent an hour and a
half later, Resideo confirmed that Dr. White had done limited work for Resideo before this matter
and had never worked for the other entities. Despite receiving the information it requested, TWS
stated that the information was not adequate and that TWS was “continuing to stand on our
objection.”
The parties dispute first whether the objection process has been triggered under the
Protective Order and, second, whether TWS’s objection is valid.
First, Resideo substantially complied with the Protective Order and allowed TWS to
challenge Dr. White. Indeed, as recently as February 20, 2025, TWS’s counsel confirmed that they
were “continuing to stand on our objection.” The Court should reject any argument that the
objection period has not been triggered. TWS cannot have it both ways. Resideo provided the
information that TWS requested, and TWS has the information it needs to evaluate Dr. White.

February 21, 2025
Page 3
When reviewing a dispute over the release of confidential information to a third-party
consultant governed by a protective order, the court “will consider the competing interests of the
parties as to the dissemination and use of this sensitive information.” In re Am. Ex. Anti-Steering
Rules Against Litig. (NO II), 10-CV-04496 (NGG) (RER), 2012 WL 13098456, at *2 (E.D. N.Y. Nov. 16,
2012) (citation omitted). These competing interests include: “1) whether the person receiving the
confidential information is involved in competitive decision making or scientific research relating
to the subject matter of the [materials], 2) the risk of inadvertent disclosure of proprietary
information, 3) the hardship imposed by the restriction, 4) the timing of the remedy, and 5) the
scope of the remedy.” Flores v. Stanford, 18 Civ. 02468 (VB) (JCM), 2021 WL 4441614, at *4 (S.D.
N.Y. Sept. 28, 2021) (citation omitted).
Resideo’s interest in retaining an expert with appropriate experience and providing this
expert with the information necessary for him to effectively provide litigation support outweighs
TWS’s unspecified concern that Dr. White could somehow use TWS’s information—about an 8year-old battery product—against it. Protective orders exist to guard against this risk and provide
sanctions for any misuse of protected information. See Flores, 2021 WL 4441614, at *8.
Dr. White works for Exponent, a premier engineering and scientific consulting firm, and he
does not have “control over a competitor’s decisions to use” one battery over another. See id. at
*9. And “absent any evidence” that Dr. White is “involved in competitive decision-making,” TWS’s
argument “amounts to a fear that [the expert] will communicate [TWS’s] proprietary information
to the public or a competitor simply because [he] has the information,” which is “behavior that
would violate the Protective [Order.]” Id. at *10. This kind of fear “is too theoretical to warrant
preclusion of that expert’s receipt of relevant information.” Id. (quotation omitted). What’s more,
the battery technology at issue is from 2017—hardly the kind of leading-edge technology that
could pose any competitive risk.
Second, TWS’s objection should be overruled. TWS can evaluate Dr. White for bias through
his deposition, move to exclude him, and question him during cross-examination. Potential bias
is not a valid reason to prevent Dr. White from viewing relevant documents. Dr. White has already
signed the NDA, and this is enough. See Flores, 2021 WL 4441614, at *8. Further, TWS’s broadbased objection may not be assuaged even if Resideo retains a different expert. The world of
lithium-ion battery expertise is small, and preventing one expert from opining in this case solely
because he has consulted for other battery companies would likely mean that all of them should
be excluded.
With less than 31 days left in discovery, Resideo respectfully asks the Court to overrule
TWS’s objection, so that Dr. White may further assist Resideo, including by reviewing TWS’s own
expert report. If the Court does not grant this permission, Resideo requests a new expert deadline
of March 21, 2025, so that it can determine whether to search for and retain another lithium-ion
battery expert, with the hopes that TWS does not object again for the exact same reasons.

February 21, 2025
Page 4
Very truly yours,

Faris Rashid
FAR/daa
cc: All counsel of record via ECF