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

Filing 343

NOTICE by Exedea INC., HTC America, Inc., HTC Corporation Regarding Documents Submitted by Wi-LAN, Inc. for In Camera Review (Findlay, Eric)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS TYLER DIVISION § § § Plaintiff, v. § § § ALCATEL-LUCENT USA INC.; § Civil Action No. 6:10-cv-521 TELEFONAKTIEBOLAGET LM § ERICSSON; ERICSSON INC.; SONY ERICSSON MOBILE COMMUNICATIONS § § AB; SONY ERICSSON MOBILE § COMMUNICATIONS (USA) INS.; HTC § CORPORATION; HTC AMERICA, INC.; § EXEDEA INC.; LG ELECTRONICS, INC.; LG ELECTRONICS MOBILECOMM U.S.A., § § INC.; LG ELECTRONICS U.S.A., INC. § § Defendants. § WI-LAN, INC. HTC’ NOTICE REGARDING DOCUMENTS SUBMITTED BY WI-LAN, INC. FOR IN CAMERA REVIEW On October 26, 2012, Defendants HTC Corporation, HTC America, Inc. and Exedea, Inc. (“HTC”) filed a motion to compel documents inappropriately claimed as privileged by plaintiff Wi-LAN. Wi-LAN had months to review these documents after HTC filed its brief. We are now weeks away from trial and have confirmed what HTC suspected all along – Wi-LAN is abusing the attorney-client privilege to withhold relevant documents. Pursuant to the Court’s February 26, 2013 order, HTC randomly chose eighty documents from Wi-LAN’s privilege log for in camera review (Docket No. 330). On March 4, 2013, Plaintiff Wi-LAN responded by either waiving its privilege claims or admitting error as to twelve (12) documents, namely, Log Entry Nos. 1037, 4359, 4368, 4423, 4490, 4840, 5622, 6181, 9155, 4461, 5104, 5710 and 422 (Docket No. 339, Exhibit A). The number of documents which Wi-LAN admittedly improperly included in its privilege log amounts to 15% of the documents that HTC randomly chose for in camera review. This does not take into account any additional documents that the Court may determine are not privileged. This 15% “error” rate, when applied to the entire log of 13,762 documents means that there are currently more than 2,200 documents listed in Wi-LAN’s privilege log that are not privileged. Such high numbers from such a random sampling clearly indicates the need for review by a special master. Despite HTC’s repeated requests, Wi-LAN has refused to produce to HTC the bates numbers corresponding to the documents on the log which it claims to have already produced. Moreover, five of the twelve documents were produced last night. These documents are not privileged and include, for example, (1) extensive communications between the parties for which -1- there is absolutely no privilege, and (2) a highly relevant financial summary of a license on which plaintiff’s expert heavily relies for his damages assessment. Wi-LAN’s 15% “error” rate (even before the Court has reviewed these documents) on only 80 randomly selected documents necessitates a more thorough and complete review of the 13,762 documents withheld by Wi-LAN based on privilege to avoid prejudice to HTC. Dated: March 6, 2013 Respectfully submitted, By: /s/ Eric H. Findlay Stephen S. Korniczky (Admitted Pro Hac Vice) Martin R. Bader (Admitted Pro Hac Vice) Sheppard Mullin Richter & Hampton LLP 12275 El Camino Real, Suite 200 San Diego, California 92130 Telephone: (858) 720-8900 Facsimile: (858) 509-3691 skorniczky@sheppardmullin.com Eric H. Findlay State Bar No. 00789886 Findlay Craft LLP 6760 Old Jacksonville Highway, Suite 101 Tyler, Texas 75703 Telephone: (903) 534-1100 Facsimile: (903) 534-1137 Email: efindlay@findlaycraft.com Attorneys for Defendants HTC CORPORATION, HTC AMERICA, INC., EXEDEA, INC. -2- CERTIFICATE OF SERVICE The undersigned certifies that on this 6th day of March, 2013, counsel of record who are deemed to have consented to electronic service are being served with a copy of this document by electronic mail. /s/ Eric H. Findlay Eric H. Findlay -3-

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