Rockstar Consortium US LP et al v. Google Inc

Filing 211

BRIEF filed Plaintiffs' Supplemental Brief Regarding Privilege [dkt 206] by NetStar Technologies LLC, Rockstar Consortium US LP. (Attachments: # 1 Declaration of Meng Xi, # 2 Exhibit A - Excerpts from 10-9-2014 Hearing)(Xi, Meng)

Exhibit A

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF TEXAS

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MARSHALL DIVISION

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ROCKSTAR CONSORTIUM US LP,

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ET AL.

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CIVIL DOCKET NO.

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2:13-CV-893-JRG-RSP

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MARSHALL, TEXAS

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VS.

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GOOGLE, INC.

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OCTOBER 9, 2014
1:10 P.M.

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MOTIONS HEARING

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BEFORE THE HONORABLE JUDGE ROY S. PAYNE
UNITED STATES MAGISTRATE JUDGE

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APPEARANCES:

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FOR THE PLAINTIFFS: (See sign-in sheets docketed in
minutes of this hearing.)

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FOR THE DEFENDANT:

(See sign-in sheets docketed in
minutes of this hearing.)

COURT REPORTER:

Ms. Shelly Holmes, CSR-TCRR
Official Reporter
United States District Court
Eastern District of Texas
Marshall Division
100 E. Houston Street
Marshall, Texas 75670
[phone]

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(Proceedings recorded by mechanical stenography, transcript
produced on a CAT system.)

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middle of the production of the transferred items.
With respect to the non-transferred items, we don't

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even know what's on those computers, Your Honor.

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had an opportunity to review them.

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THE COURT:

We haven't

And frankly, I'm a lot less concerned

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about the non-transferred items, because if that definition is

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properly applied, I don't think non-transferred items would be

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of any relevance to Google in this litigation.

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should not have a problem with privilege on those other than

And so we

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designing a system that won't constitute a waiver of any

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privilege that exists.

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But I -- from what I'm hearing, it sounds like you're

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relying on this common interest agreement to take care of the

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issue about whether you -- whether Nortel waived privilege by

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transferring these computers in the way they did.

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the common interest agreement doesn't get there, I think

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there's a serious issue about whether or not Nortel acted

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diligently to preserve that privilege if there was no follow-up

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after the transfer of the computers to see that the -- to see

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that the protocol was carried out.

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Certainly if

But in any event, I'll -- we can delay that until we

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see this common interest agreement.

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you, Mr. Supko, and I'll give you another chance to be heard if

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you've got more issues to raise before today.

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MR. SUPKO:

All right.

The -- but I -- I thank

And I would note I was only

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transferred data is defined in -- I think in the definitions,

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and then it refers to Section D3 -- that's on Page 6 -- which

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then refers to some other sections.

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THE COURT:

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MR. PERLSON:

I went through that earlier today.
Yeah.

And -- and so I think that there

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are -- there's considerable material on -- that would be

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non-transferred data.

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discussions and valuations.

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hypothetical -- person in a hypothetical negotiation within

These are people involved in licensing
They were talking -- you know, the

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this case is going to be Nortel.

And so their licensing

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policies, discussions about licensing generally will be

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relevant.

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could potentially be relevant.

Licenses with other entities regarding other patents

So this notion that only the transferred documents

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could have relevance to this case I just don't think is

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correct.

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non-transferred documents and the transferred documents that

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have highly relevant material in them.

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searched long ago, and we just -- and under the current

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schedule, we just can't wait any longer for them.

And so we have both categories of documents, both the

All right.

They should have been

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THE COURT:

Thank you.

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I'm -- I'm going to say that I interpret this

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transition services agreement as defining the transferred data

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or documents as any data or documents relevant to the patents

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that were assigned.

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MR. PERLSON:

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That's -- that's fine.

And I think

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that -- that might be the time in which we would get the

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privilege log anyways which might help us with the briefing, as

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well.

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THE COURT:

That should be actually a little after you

get the privilege log.

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MR. PERLSON:

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THE COURT:

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Right, exactly.
Okay.

file a joint brief on that, that's fine.

MR. KELLER:

Hopefully the last point of

clarification, Your Honor.
THE COURT:

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MR. KELLER:

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I don't care how

y'all proceed.

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And if Plaintiff and Nortel want to

All right.
The briefing, are we focusing on the

transfer materials, the non-transferred materials, or both?
THE COURT:

I don't see any reason why it shouldn't

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focus on both.

I'm more concerned at this point with the

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transferred materials because those are the ones that will be

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on the privilege log.

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your position as to non-transferred materials, I -- I don't see

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why you shouldn't address it at the same time.

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MR. KELLER:

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MR. PERLSON:

But to the extent you want to protect

Thank you.
I -- I apologize, Your Honor.

But I

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mean, just to be clear, I think that there is a dispute about

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whether the -- related to the patents or not is within the

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transfer and non-transferred items, and it would be our

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position that to the extent that there are documents regarding

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licensing that would be relevant to licensing general, theories

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or other -- other licenses that Nortel has -- has entered into

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that are comparable, to the extent that they are withholding

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those documents, that those would need to be logged, too.

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I -- you know, we can maybe have that fight later, but that's

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our position that there are non-transferred documents that

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should either be produced or logged.
THE COURT:

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And

And you see, I am hoping to somewhat avoid

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that issue by defining transferred as relevant.

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the other licenses can be relevant.

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have to cross that bridge when we get there.
MR. NELSON:

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Yes.

And certainly

But I guess we'll -- we'll

Your Honor, Justin Nelson.

We

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interpret it the same way that -- to the extent that

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Mr. Perlson, the categories that he mentioned, I think, fall

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under what Your Honor just stated.

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to produce or log all those documents.
THE COURT:

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Okay.

And our intention is either

Thank you.

And -- and I would ask

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if Plaintiff and Defendant would both look further at this

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question about whether or not the common interest agreement

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itself is privileged.

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fine.

And if you're able to work that out,

If not, then you should include that in your briefing.

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MR. NELSON:

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THE COURT:

Thank you, Your Honor.
Okay.

So if -- if counsel for Nortel