Rockstar Consortium US LP et al v. Google Inc

Filing 187

REPLY to Response to Motion re 152 MOTION for Protective Order filed by Nortel Networks Corporation, Nortel Networks Limited. (Dacus, Deron)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
ROCKSTAR CONSORTIUM US LP and
NETSTAR TECHNOLOGIES LLC,
Case No. 2:13-cv-00893-JRG
Plaintiffs,
v.
GOOGLE, INC.,
Defendant.

REPLY IN FURTHER SUPPORT OF NORTEL NETWORKS CORPORATION AND
NORTEL NETWORKS LIMITED’S MOTION FOR A PROTECTIVE ORDER
UNDER FEDERAL RULES OF CIVIL PROCEDURE 26(c) AND 45(d)(3)
Non-parties Nortel Networks Corporation (“NNC”) and Nortel Networks Limited
(“NNL”) (collectively, with all subsidiaries (“Nortel”)), by Ernst & Young Inc. as courtappointed Monitor, file this Reply in further support of its motion for a protective order under
Federal Rules of Civil Procedure 26(c) and 45(d)(3), and in response to the opposition filed by
Google Inc. (“Google”) on September 29, 2014.
PRELIMINARY STATEMENT
Nortel, a non-party to this litigation, demonstrated in its opening brief that a protective
order is necessary to prevent the wrongful disclosure of Nortel’s privileged and confidential
documents that are, but should not be, in the possession of Rockstar Consortium US LLP
(“Rockstar”). Permitting Rockstar to access the non-transferred items at issue would expose
Nortel to an invasion of its privileges as well as potential liability for breaching confidentiality
provisions in its agreements with third-parties, including bidders and contractual counter-parties.
The relief requested by Nortel would provide necessary protection from these harms while
minimizing the disruption to the schedule in the litigation between Rockstar and Google.

Google’s opposition provides no meaningful response to Nortel’s showing. Google’s
opposition is instead focused, in large part, on launching attacks on Rockstar and accusing
Rockstar of attempting to delay the production of discovery. But Google provides no reason
why Nortel should be punished for the supposed sins of Rockstar. Nortel, as a non-party, is
concerned only with protecting the privileges of the non-transferred documents that should not
be in Rockstar’s possession in the first place. Because a protective order is the only way to
prevent the invasion of Nortel’s privileges, Nortel’s motion for a protective order should be
granted.
ARGUMENT
I.

Granting The Relief Sought By Nortel Would Not Prejudice Google

Google mischaracterizes the relief sought by Nortel, wrongly arguing that Nortel is
asking the Court to “uproot the case schedule” and “preclude Plaintiff Rockstar from producing
documents that Rockstar was already required to have ‘substantially’ produced to Google . . . .”
Opposition at 1. Google further argues, in wholly conclusory fashion, that it would suffer
“extreme” prejudice if the Court grants relief to Nortel because such relief would supposedly
delay Google’s access to materials needed to build its case. Google’s positions are without
merit.
First, as Nortel plainly stated in its opening papers, Nortel does not seek to impose any
restrictions on the production of materials relating to transferred files. Rather, Nortel merely
seeks to prevent Rockstar from accessing the non-transferred files contained on the computers at
issue – files that do not belong to Rockstar and contain Nortel’s privileged and confidential
information.
The Court need look no further than the Transition Services Agreement between Nortel
and Rockstar (the “TSA”), which was produced to Google, to see that only the transferred files

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are likely to contain information that is relevant to the litigation between Google and Rockstar.
The non-transferred files, by contractual definition, are unrelated to the patents that Rockstar
acquired from Nortel, and are thus unrelated to the subject matter of this litigation. Specifically,
Section 4(i) of the TSA describes “non-transferred items” as “information, application or data . .
. not included in the Assets purchased under the ASA or licensed to the Purchaser.” Given that
the non-transferred files over which Nortel seeks protection are unrelated to the patents at issue
in this litigation, those files are unlikely to contain any information that Google needs to build its
case.
In sum, Google’s assertion that granting the relief sought by Nortel would create delays
in the litigation calendar and prejudice Google’s discovery rights is premised on the false
assumption that the non-transferred files contain information that Google needs to build its case.
As the relief sought by Nortel is limited to preventing Rockstar from accessing material that is
unlikely to contain information that is relevant to the litigation between Rockstar and Google,
Google’s complaints about “extreme” prejudice and delay ring hollow.
II.

Nortel Acted Diligently In Seeking To Resolve The Discovery Issues, And
Google’s Complaints About Rockstar’s Alleged Conduct Are Irrelevant

Google spends much of its opposition airing grievances about the alleged conduct of
Rockstar in responding to discovery in this case. But there is certainly no basis to punish Nortel,
an innocent non-party, for the alleged shortcomings in Rockstar’s responses to Google’s
discovery requests. Google’s complaints about Rockstar’s conduct are entirely irrelevant to this
motion.
What cannot reasonably be disputed is that Nortel acted diligently in seeking to resolve
the discovery issues raised by this motion. Nortel was informed by Rockstar less than two
months ago that Rockstar had not deleted the non-transferred files from the computers that it
acquired from Nortel, and that Rockstar planned to search such computers in response to
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Google’s discovery requests in this case. Nortel and Rockstar then engaged in discussions for
the next several weeks in an effort to develop a protocol that would permit Rockstar to search the
computers in its possession for documents responsive to Google’s discovery requests without
accessing the privileged and confidential information owned by Nortel. After Rockstar notified
Nortel that it could not continue these discussions in light of its document production deadline,
Nortel promptly filed its motion seeking protective relief from this Court.
III.

Google’s Attempt To Cast Aspersions On Nortel’s Interests In Protecting Its
Privileged And Confidential Information Is Baseless

Google’s attempt to casually brush aside non-party Nortel’s interests in protecting the
attorney-client privilege and honoring contractual non-disclosure obligations is alarming and
baseless. Google’s suggestion that these interests are somehow diminished because Nortel is in
Chapter 11 proceedings, Opposition at 10, is entirely unsupported.
Google’s suggested “claw back” arrangement would hardly suffice to protect Nortel’s
interests. Claw back arrangements may provide adequate protection in the limited context of
inadvertent disclosures, but what Google is suggesting here is that Nortel’s privileged and
confidential information be intentionally disclosed to Rockstar and then to Google. Non-party
Nortel should not be required to submit to such careless treatment of its privileged and
confidential documents, particularly in light of the fact that such documents are unlikely to
contain relevant information.

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CONCLUSION
For the foregoing reasons, and for the reasons set forth in its opening papers, Nortel
respectfully requests that the Court enter a protective order prohibiting Rockstar from accessing
any “non-transferred items” on the computers it acquired from Nortel.
Dated: October 3, 2014

THE DACUS FIRM
/s/ Deron R. Dacus_________
Deron Dacus
State Bar No. 00790553
821 ESE Loop 323
Suite 430
Tyler, TX 75701
903-705-1117 (telephone)
[e-mail]

ALLEN & OVERY LLP

Jacob S. Pultman
Paul B. Keller
Bradley S. Pensyl
1221 Avenue of the Americas
New York, NY 10020
[phone] (telephone)
[phone] (facsimile)
[e-mail]
[e-mail]
[e-mail]
Attorneys for Ernst & Young Inc., as Monitor
of Nortel Networks Corporation and Nortel
Networks Limited

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CERTIFICATE OF SERVICE
The undersigned hereby certifies that all counsel of record who have consented to
electronic service are being served with a copy of this document via the Court’s CM/ECF system
per Local Rule CV-5(a)(3) on this 3rd day of October, 2014.
Deron R. Dacus
Deron R. Dacus