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

Filing 344

NOTICE by WI-LAN Inc. re 343 Notice (Other) WI-LANS RESPONSE TO HTCS NOTICE REGARDING DOCUMENTS SUBMITTED BY WI-LAN, INC. FOR IN CAMERA REVIEW (Pai, Ajeet)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
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WI-LAN INC.,
Plaintiff,
v.
ALCATEL-LUCENT USA INC.; et al.
Defendants.

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

WI-LAN’S RESPONSE TO HTC’S NOTICE REGARDING
DOCUMENTS SUBMITTED BY WI-LAN, INC. FOR IN CAMERA REVIEW
Plaintiff Wi-LAN Inc. respectfully responds to HTC’s “Notice” (Dkt. No. 343)
concerning twelve privilege log entry numbers.
(1) HTC inaccurately states that, following HTC’s identification of documents for
review, “Wi-LAN responded by either waiving its privilege claims or admitting error as to
twelve (12) documents.” That is not correct. As stated in Wi-LAN’s Objections, eight of those
twelve documents (Nos. 4359, 4423, 4461, 4490, 4840, 5622, 6181, 9155) had already been
produced to HTC last summer and fall, though the corresponding entry inadvertently was not
removed from Wi-LAN’s privilege log. HTC’s claims of prejudice are implausible, given that it
has long been in possession of the documents indicated by those privilege log entries.
(2) With regard to the remaining documents identified in its Notice, HTC claims
prejudice because “five of the twelve documents were produced last night.” As HTC could have
verified from a simple search of Wi-LAN’s production, one of these documents is a duplicate
production of previously produced entry No. 4461.

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The substance of another of those

documents, No. 5710—which HTC appears to believe is “a highly relevant financial summary”
—was previously produced in alternate form. Of the remaining three documents, two (No. 1037
and 5104, which HTC appears to characterize as “extensive communications between the
parties”) are merely non-substantive transmittal copies of documents already produced to HTC in
their entirety. Again, HTC’s claims of prejudice are without basis.
(4) In its Notice, HTC argues that a “15% error rate” from “such a random sampling”
should be applied to “the entire log of 13,762 documents.” Leaving aside that HTC’s purported
“sampling” was neither random nor resulted in a “15% error rate,” HTC now appears to attempt
to evade its representation to the Court during the February 26, 2013 hearing that its challenge
was narrowed to approximately 1,600 documents. (Hearing Tr. at pg. 30–31 (Feb. 26, 2013).)
In addition to being wrong on the merits about purported “error,” therefore, HTC grossly inflates
the number of privilege log entries at issue.
(3) Finally, HTC misleadingly states that Wi-LAN has refused to identify to HTC the
bates numbers corresponding the above documents. But that is simply incorrect. Rather, HTC’s
request to Wi-LAN was made on the afternoon of March 5th, and its Notice was filed shortly
after 9:30 am on March 6th. HTC now complains despite not permitting Wi-LAN a reasonable
amount of time to respond.
In short, HTC’s arguments are without merit, and its claims of prejudice ring hollow.
Wi-LAN respectfully requests that any relief sought by HTC be denied.

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Dated: March 6, 2013

Respectfully submitted,
By:

Local Counsel
Johnny Ward (TX Bar No. 00794818)
Wesley Hill (TX Bar No. 24032294)
Claire Abernathy Henry
(TX Bar No. 24053063)
WARD & SMITH LAW FIRM
P.O. Box 1231
1127 Judson Rd., Ste. 220
Longview, TX 75606-1231
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
claire@wsfirmcom

/s/ Ajeet P. Pai
David B. Weaver (TX Bar No. 00798576)
Lead Attorney
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)
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]
Steve R. Borgman (TX Bar No. 02670300)
VINSON &ELKINS LLP
1001 Fannin Street, Suite 2500
Houston, TX 77002-6760
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiff, Wi-LAN Inc.

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was filed electronically in
compliance with Local Rule CV-5(a). As such, this document was served on all counsel who are
deemed to have consented to electronic service on this the 6th day of March, 2013.

/s/ Ajeet P. Pai
Ajeet P. Pai

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