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

Filing 380

NOTICE by WI-LAN Inc. re 362 Order,,, Notice of Submission of Privileged Documents for In Camera Inspection (Hill, Jack)

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

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

PLAINTIFF’S NOTICE OF SUBMISSION OF PRIVILEGED DOCUMENTS
FOR IN CAMERA INSPECTION
Pursuant to the Court’s Order dated March 14, 2013 (ECF No. 362, entered March 15,
2013), Plaintiff Wi-LAN, Inc. gives notice that it has complied with the requirements of the
Court’s order by submitting the 25 privileged documents identified by HTC from Wi-LAN’s
Amended Privilege Log for in camera inspection.
HTC included with its notice selecting 25 exhibits from Wi-LAN’s Amended Privilege
Log correspondence from HTC’s counsel to Wi-LAN’s counsel making numerous self-serving,
false accusations.

To correct these misstatements, Wi-LAN provides the following details

regarding its compliance with the Order:
Beginning on Friday, March 15, 2013, after entry of the Order, Wi-LAN re-inspected the
documents on its privilege log and, in 72 hours, completed its production in accordance with the
Court’s Order.

Compliance with the Order required production of redacted e-mail strings

regardless of prior production, and required substantive redaction of thousands of documents by
attorneys. More than 30 attorneys spent collectively in excess of 500 attorney hours in the
course of Friday night, Saturday, and Sunday morning reviewing and redacting documents.

Because of the lead time required for a document production vendor to image the documents for
production, Wi-LAN was required to work with the vendor to prepare the documents for
production overnight on Sunday night.
In order to permit HTC to begin reviewing documents immediately, Wi-LAN’s vendor
posted the production of documents for download on Monday, March 18, 2013. Because of the
time involved, the vendor did not delay matters to create OCR data—which is not required by
the discovery order in this case, the local rules, or otherwise—until after HTC had been provided
with access to the production. Wi-LAN informed HTC’s counsel of this fact by phone on
Monday.

Wi-LAN similarly did not have OCR data for the production and provided it

immediately on Tuesday when it was created by the vendor. Similarly, Wi-LAN promptly
provided replacements for the small number of images that did not render correctly when first
processed by the vendor.
HTC misleadingly states in the correspondence filed with the Court that “after the
Court’s deadline for compliance passed, Wi-LAN belatedly produced” its documents. Lead
counsel for Wi-LAN specifically informed HTC’s counsel by phone on Monday morning (in
advance of the deadline) that the vendor’s upload was taking longer than expected, and the
production was provided to HTC 36 minutes after the noon deadline. Wi-LAN’s lead counsel
also offered to agree to an extension of time for HTC, which HTC declined.
HTC further suggests in its letter that Wi-LAN “buried dozens of new documents in its
privilege log.”

Counsel for Wi-LAN specifically informed HTC’s counsel during phone

conversations on Monday that Wi-LAN did not intentionally change privilege log entries for
existing documents, resulting in skips for documents no longer on the privilege log. Rather than
working cooperatively with Wi-LAN, HTC declined to raise issues with any specific entries by

phone for discussion and resolution. HTC instead chose to raise the problem for the first time in
the letter filed with the Court. An inspection of the repeated entries in the identified sections
shows that those rows are copy-and-paste or lookup errors resulting from creation of a privilege
log in an extraordinarily short timeframe. Since receipt of the letter, Wi-LAN has identified
approximately 250 such entries, and is working diligently to provide a listing of those rows and a
revised privilege log today, March 20, 2013.
Wi-LAN is prepared to address any questions the Court may have regarding Wi-LAN’s
production.
Dated: March 20, 2013

Respectfully submitted,

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

By:

/s/ David Weaver (by perm Wesley Hill)
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)
Janice Ta (TX Bar No. 24075138)
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]
Steve R. Borgman (TX Bar No. 02670300)
Gwendolyn J. Samora
(TX Bar No. 00784899)
VINSON &ELKINS LLP
1001 Fannin Street, Suite 2500

Houston, TX 77002-6760
Tel: [phone]
Fax: [phone]
[e-mail]
Chuck P. Ebertin (CA Bar No. 161374)
VINSON & ELKINS LLP
1841 Page Mill Road, Suite 200-B
Palo Alto, CA 94304
Tel: [phone]
Fax: [phone]
[e-mail]
Constance S. Huttner
(NY Bar No. 1722024)
VINSON & ELKINS LLP
666 5th Avenue, 26th Floor
New York, NY 10103-0040
Tel: [phone]
Fax: (9l7) 849-5339
[e-mail]
[e-mail]
Attorneys for Plaintiff, Wi-LAN Inc.

CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing document
was served by electronic delivery this 20th day of March, 2013.

/s/ Wesley Hill
Wesley Hill