WI-LAN Inc. v. Alcatel-Lucent USA Inc. et al

Filing 222

SUR-REPLY to Reply to Response to Motion re 212 MOTION for Protective Order In Opposition to Sony Mobile Defendants' Motion for Protective Order filed by WI-LAN Inc.. (Pai, Ajeet)

THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
WI-LAN INC.,

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Plaintiff,
v.
ALCATEL-LUCENT USA INC., et al.
Defendants.

Civil Action No. 6:10-cv-521-LED
JURY TRIAL DEMANDED

WI-LAN INC.’S SUR-REPLY IN OPPOSITION TO
THE SONY MOBILE DEFENDANTS’ MOTION FOR PROTECTIVE ORDER
Sony Mobile’s Reply highlights its failure to meet its discovery obligations in this case.
Despite recognizing at least as early as January 20, 2012 that the additional smartphone products
were at issue, Sony Mobile chose to refuse to answer interrogatories that would have permitted
Wi-LAN to specifically name these products earlier. (ECF No. 220 at 3 (“Reply”).) Indeed,
Sony Mobile continues to withhold documents for smartphones it recognized as relevant and
discoverable at least as early as January 2012. Sony Mobile has provided no valid reason to
excuse its past Discovery Order violation and no good cause to suspend its continuing discovery
obligations. Accordingly, Sony Mobile’s motion should be denied.
I. Sony Mobile Has Known That The Additional Products Were Accused Since at
Least January 2011, If Not Earlier.
Sony Mobile attempts to explain its failure to comply with its discovery obligations by
taking issue with Wi-LAN’s infringement contentions—more than a year and a half after this
case was filed—and in the form of a Reply to a motion for protection. Notably, Sony Mobile has
never moved the Court for any relief regarding the sufficiency of Wi-LAN’s contentions. As
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noted in Wi-LAN’s Reply in Support of its Motion for Leave (ECF No. 221), this is
unsurprising, given that those same contentions were plainly adequate for Sony Mobile to
determine that documents regarding its additional smartphones were responsive when it
produced some such documents in late January 2011. Those same contentions have also been
adequate to permit this case to develop through claim construction and discovery for more than a
year.
Nor is Sony Mobile’s suggestion that it did not know what additional smartphones might
be at issue (or might be reasonably similar) plausible. (Reply at 4.) Wi-LAN’s contentions
undisputedly identified not only specifically named smartphones known to Wi-LAN but all
others “complying with at least 3GPP rel. 5, et seq., HSDPA, HSUPA, or HSPA.” And, in any
case, Wi-LAN undisputedly specifically named the additional smartphones in an interrogatory
response no later than May 10, 2012, but Sony Mobile still did not provide the required
interrogatory response or discovery. Wi-LAN again specifically named these smartphones in
infringement contentions dated June 14, 2012, but Sony Mobile again did not provide the
interrogatory response or discovery.

There was no confusion as to what products were

“reasonably similar” to those specifically named.

Rather, Sony Mobile simply chose to

disregard its discovery obligations with regard to the additional smartphones, yet now complains
that Wi-LAN did not act quickly enough to amend its infringement contentions.
II. Sony Mobile Has Provided No Valid Excuse for its Refusal To Provide Discovery.
In the Eastern District, “discovery may be properly extended to products ‘reasonably
similar’ to those accused in [infringement contentions].” DDR Holding, LLC v. Hotels.com, No.
2:06-CV-42-JRG, 2012 U.S. Dist. LEXIS 99797, at *10-11 (E.D. Tex. July 18, 2012) (internal
quotation omitted). “This is particularly true when, as [the plaintiff] did here, a party specifically

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identifies a series of products that may operate in a matter ‘reasonably similar’ to other products
specifically identified in the contentions.” Id. at *14. Sony Mobile clearly understood from WiLAN’s infringement contentions that it had a mandatory disclosure obligation with regard to
“reasonably similar” smartphones implementing HSDPA, HSUPA, or HSPA, as it made an
initial production of technical information relating to some such additional smartphones on
September 21, 2011. Sony Mobile likewise understood the additional smartphones were at issue
when it made a second document production of some materials relating to the additional
smartphones on January 20, 2012. (Defs’ Mot. at 2.) These productions reflect Sony Mobile’s
understanding that information concerning the Additional Products was relevant and
discoverable, yet it chose not to identify the products for which it had produced information so
that Wi-LAN could specifically name them. Nor has Sony Mobile since provided full discovery
relating to those smartphones, as requested by Wi-LAN. Having refused to answer Wi-LAN’s
interrogatory seeking the very information that would have permitted Wi-LAN to amend its
infringement contentions earlier, but instead having chosen to wait until the eve of depositions to
file a motion for protection, Sony Mobile cannot now complain about a delay of its own making.
III. Sony Mobile’s Motion for Protection Should Be Denied.
Because Sony Mobile lacks good cause for its request for protection but rather asks the
Court to overlook its failure to meet its own discovery obligations, its motion for protection
should be denied. Wi-LAN respectfully requests that Sony Mobile be ordered to comply with
the Discovery Order without further delay.

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Dated: August 30, 2012

Respectfully submitted,

Local Counsel

By:

Johnny Ward
Texas State Bar No. 00794818
Wesley Hill
Texas State Bar No. 24032294
WARD & SMITH LAW FIRM
P.O. Box 1231
1127 Judson Road, Suite 220
Longview, TX 75606
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]

/s/ Ajeet Pai
David B. Weaver (TX Bar No. 00798576)
Lead Attorney
Michael A. Valek (TX Bar No. 24044028)
Avelyn M. Ross (TX Bar No. 24027817)
Ajeet P. Pai (TX Bar No. 24060376)
Syed K. Fareed (TX Bar No. 24065216)
Jeffrey T. Han (TX Bar No. 24069870)
Janice Ta (TX Bar No. 24075138)
Seth A. Lindner (TX Bar No. 24078862)
VINSON & ELKINS LLP
2801 Via Fortuna, Suite 100
Austin, TX 78746
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Chuck P. Ebertin
California Bar No. 161374
VINSON & ELKINS LLP
525 University Avenue, Suite 410
Palo Alto, CA 94301-1918
Tel: [phone]
Fax: [phone]
[e-mail]
Attorneys for Plaintiff, Wi-LAN Inc.

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CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was filed electronically in
compliance with Local Rule CV-5(a) on this the 30th day of August, 2012. As such, this
document was served on all counsel who are deemed to have consented to electronic service.
Local Rule CV-5(a)(3)(A).

/s/ Ajeet Pai
Ajeet Pai
US 1549854v.1

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