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)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TEXAS
TYLER DIVISION

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§
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Plaintiff,
v.
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ALCATEL-LUCENT USA INC.;
§ Civil Action No. 6:10-cv-521
TELEFONAKTIEBOLAGET LM
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ERICSSON; ERICSSON INC.; SONY
ERICSSON MOBILE COMMUNICATIONS §
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AB; SONY ERICSSON MOBILE
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COMMUNICATIONS (USA) INS.; HTC
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CORPORATION; HTC AMERICA, INC.;
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EXEDEA INC.; LG ELECTRONICS, INC.;
LG ELECTRONICS MOBILECOMM U.S.A., §
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INC.; LG ELECTRONICS U.S.A., INC.
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Defendants.
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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

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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: [phone]
Facsimile: [phone]
[e-mail]
Eric H. Findlay
State Bar No. 00789886
Findlay Craft LLP
6760 Old Jacksonville Highway, Suite 101
Tyler, Texas 75703
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Attorneys for Defendants
HTC CORPORATION, HTC AMERICA, INC.,
EXEDEA, INC.

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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

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