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

Filing 389

Opposed MOTION to Expedite Briefing Schedule on Motion to Enforce Compliance with the Court's Order of March 14, 2013 [Dkt. 388] by Alcatel-Lucent USA Inc., Ericsson Inc., Exedea INC., HTC America, Inc., HTC Corporation, Sony Mobile Communications (USA) Inc., Sony Mobile Communications AB, Telefonaktiebolaget LM Ericsson. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Text of Proposed Order)(Cornelius, William)

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

Plaintiff,
CIVIL ACTION NO. 6:10–CV–521–LED

ALCATEL–LUCENT USA INC., et al.,
Defendants.
WI-LAN INC.,
v.

Plaintiff,
CIVIL ACTION NO. 6:13–CV–252–LED

HTC CORPORATION ET AL.,
Defendants.

DEFENDANTS’ OPPOSED MOTION FOR EXPEDITED BRIEFING SCHEDULE ON MOTION TO
ENFORCE COMPLIANCE WITH THE COURT’S ORDER OF MARCH 14, 2013
On April 16, 2013, Defendants filed a Motion to Enforce Compliance with the Court’s
Order of March 14, 2013. [ECF No. 388]. The basis of Defendants’ motion is Wi-LAN’s
clawback of 2,446 documents that it had produced on March 18, 2013, in response to the Court’s
Order of March 14, 2013 [ECF No. 362]. Defendants believe that Wi-LAN’s clawback of these
documents is improper and impermissibly limits their ability to complete discovery of relevant
information by the May 17, 2013, deadline imposed by the Court. [ECF No. 384] (imposing a
May 17th deadline for “Supplemental Fact Discovery, if any, in light of Wi-LAN’s recently
produced documents”). Because this deadline is just a month away, Defendants respectfully
request that the Court order an expedited briefing schedule on Defendants’ Motion to Enforce.

–1–

BACKGROUND
It its March 14th Order, the Court directed Wi-LAN to undertake three specific actions: (1)
“to conduct a full and thorough review, in light of [the] order, of the documents [Wi-LAN]
previously withheld as privileged”; (2) “to produce the documents it deems non-privileged by
March 18, 2013 at noon”; and (3) “to submit an amended privilege log to Defendant HTC and to
the Court” by that same time. [ECF No. 362] In response to the Order, Wi-LAN produced 7,980
documents that it deemed to be not privileged and submitted a notice to the Court stating that it
had “complied with the requirements of the Court’s order by conducting a thorough review of its
documents withheld as privileged and producing any documents deemed non-privileged.” [ECF
No. 365, at 1].
On March 25, 2013, the Court issued an Order granting HTC’s Emergency Motion for
Continuance, ordering the parties to meet and confer regarding, among other things, whether
additional discovery was necessary in light of Wi-LAN’s document production of March 18th.
[ECF No. 382]. After the Court’s March 25th Order continuing the trial date and requiring the
parties to discuss discovery relating to the documents produced on March 18th, Wi-LAN began
attempting to claw back documents that it had produced on March 18th. As described in
Defendants’ Motion to Enforce, in doing so, it is apparent that Wi-LAN is now applying a
different standard for evaluating privilege than it used for the production on March 18th. But
Wi-LAN had previously certified to the Court that the production on March 18th had been
conducted in accordance with the March 14th Order, which set forth the proper standard for
differentiating privileged information from non-privileged business or factual information.
Incredibly, on April 10th, Wi-LAN sent a letter clawing back 2,446 documents comprising
24,302 pages of information — nearly one-third of the 7,980 documents Wi-LAN produced on

–2–

March 18th — claiming that these documents were “inadvertently produced.”

Defendants

dispute Wi-LAN’s claims of privilege, and regardless, assert that Wi-LAN has waived any
privilege that might have been attached to the documents.

These issues are addressed in

Defendants’ Motion to Enforce.
POINTS AND AUTHORITIES
A.

Wi-LAN’s clawback inhibits Defendants’ ability to conduct discovery as authorized
by the Court.
On April 9th, the Court entered an Order modifying the Docket Control Order. The Court

set a deadline of May 17, 2013 for “Supplemental Fact Discovery, if any, in light of Wi-LAN’s
recently produced documents.” [ECF No. 384]. Because this deadline is just a month away,
Defendants respectfully request an expedited briefing schedule on their Motion to Enforce
Compliance with the March 14th Order.
Many of the documents Wi-LAN has clawed back are highly relevant to the issues in this
case and are directly contrary to the positions Wi-LAN has taken in the litigation. As such,
Defendants should be entitled to use these documents in depositions of current and former WiLAN employees. Wi-LAN’s clawback improperly inhibits Defendants’ discovery efforts by
preventing Defendants from using these documents in depositions Defendants requested from
Wi-LAN based on their detailed review of the documents produced on March 18th.
B.

The parties have been unable to agree on an expedited briefing schedule.
During the meet-and-confer on April 15th, Wi-LAN initially stated that it was opposed to

Defendants’ motion for an expedited briefing schedule. It did, however, agree to consider a

–3–

possible accelerated briefing schedule for the motion. Shortly after the meet and confer, on April
15th, Defendants proposed the following expedited briefing schedule to Wi-LAN: 1
•

Defendants’ Motion:

April 16th

•

Wi-LAN Response:

April 23rd

•

Defendants’ Reply:

April 26th

•

Wi-LAN Sur-Reply:

April 30th (or May 1st) 2

Wi-LAN rejected Defendants’ proposal.

Instead, Wi-LAN offered only one possible

expedited briefing schedule — one in which Defendants would not be permitted to file a reply
brief. Specifically, Wi-LAN’s schedule would have Defendants file their motion on April 16th
and Wi-LAN file its response on April 26th, with no further briefing permitted. 3
Defendants explained to Wi-LAN that such a schedule was inappropriate here, as Wi-LAN,
not Defendants, bears the burden of proving that the clawed-back documents are privileged and
that Wi-LAN did not waive the privilege. See First Am. CoreLogic, Inc. v. Fiserv, Inc., No.
2:10–CV–132, 2010 WL 4975566, at *3 (E.D. Tex. Dec. 2, 2010). Thus, under Wi-LAN’s only
proposed schedule, Defendants would be precluded from providing any response to Wi-LAN’s
proof.
Defendants suggested a compromise schedule having Wi-LAN’s response due on April
26th with Defendants’ reply due on May 1st. 4 Wi-LAN refused to agree to this proposal. 5

1

Defendants’ proposed briefing schedule sought to have the briefing completed in advance
of May 3rd to afford the Court an opportunity to address any questions it might have regarding
this issue during the previously scheduled hearing on the pending summary-judgment motions
relating to the Ericsson and Sony Mobile Defendants’ contract defenses and counterclaims.
2

Exhibit A — April 15, 2013, email from R. Wynne to D. Weaver.

3

Exhibit B — April 16, 2013, email from A. Pai to R. Wynne.

4

Exhibit C — April 16, 2013, email from R. Wynne to A. Pai.

5

Exhibit D — April 17, 2013, email from A. Pai to R. Wynne.
–4–

Regrettably, therefore, this motion is submitted as an opposed motion, as the parties are at an
impasse on an agreed briefing schedule.
CONCLUSION
For the reasons stated, Defendants respectfully request that the Court enter an Order
expediting the briefing schedule on Defendants’ Motion to Enforce Compliance with the Court’s
Order of March 14, 2013 [ECF No. 388], as follows:
•

Wi-LAN’s Response:

April 23rd

•

Defendants’ Reply:

April 26th

•

Wi-LAN’s Sur-Reply:

April 30th

–5–

Dated: April 17, 2013

Respectfully submitted,
/s/ William Cornelius
Bruce S. Sostek (Lead Attorney)
State Bar No. 18855700
[e-mail]
Richard L. Wynne, Jr.
State Bar No. 24003214
[e-mail]
THOMPSON & KNIGHT LLP
1722 Routh Street, Suite 1500
Dallas, Texas 75201
214.969.1700
214.969.1751 (facsimile)
William Cornelius
State Bar No. 04834700
[e-mail]
Jennifer Parker Ainsworth
State Bar No. 00784720
[e-mail]
WILSON, ROBERTSON & CORNELIUS, P.C.
909 ESE Loop 323, Suite 400
P.O. Box 7339 [75711]
Tyler, Texas 75701
903.509.5000
903.509.5092 (facsimile)
ATTORNEYS FOR DEFENDANTS
TELEFONAKTIEBOLAGET LM ERICSSON, ERICSSON
INC., SONY MOBILE COMMUNICATIONS AB, AND
SONY MOBILE COMMUNICATIONS (USA) INC.

–6–

/s/ Robert A. Appleby (w/permission)
Gregory S. Arovas (pro hac vice)
Robert A. Appleby (pro hac vice)
Jeanne M. Heffernan (pro hac vice)
Akshay S. Deoras (pro hac vice)
Kirkland & Ellis LLP
601 Lexington Avenue
New York, NY 10022
Tel: [phone]
Fax: [phone]
[e-mail]
Michael E. Jones
Allen F. Gardner
Potter Minton PC
110 N. College, Suite 500 (75702)
P.O. Box 359
Tyler, TX 75710
[phone]
[phone] (Facsimile)
[e-mail]
[e-mail]
Attorneys for Defendant ALCATEL-LUCENT
USA INC.

–7–

/s/ Eric H. Findlay (w/permission)
Eric H. Findlay
State Bar No. 00789886
Findlay Craft, LLP
6760 Old Jacksonville Hwy., Suite 101
Tyler, TX 75703
903/534-1100
Fax: [phone]
[e-mail]
Stephen S. Korniczky
Martin Bader
Sheppard Mullin Richter & Hampton LLP
12275 El Camino Real, Suite 200
San Diego, California 92130
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
Attorneys for Defendants
HTC CORPORATION, HTC AMERICA, INC.
and EXEDEA, INC.

–8–

CERTIFICATE OF CONFERENCE
As required by Local Rule CV–7(h), counsel for Plaintiff (David Weaver, Ajeet Pai, and
Wes Hill) and counsel for Defendants (Bruce Sostek, Richard Wynne, and William Cornelius for
Ericsson and Sony Mobile; Stephen Korniczky, Martin Bader, and Eric Findlay for HTC;
Akshay Deoras and Allen Gardner for Alcatel-Lucent) participated in a meet and confer by
telephone on April 15, 2013, and discussed the subject motion. At that time, Plaintiff stated that
it was opposed to the motion but that it would considered a proposed expedited briefing
schedule.

Defendants proposed a schedule, which Plaintiff rejected.

Plaintiff proposed a

schedule that Defendants found unacceptable because it did not permit a reply brief. Defendants
proposed a compromise schedule, which Plaintiff rejected. As such, the parties are at impasse,
and this motion is submitted to the Court for determination.
/s/ William Cornelius
William Cornelius

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was filed electronically on the 17th
day of April, 2013, in compliance with Local Rule CV–5(a) and has been served on all counsel
who have consented to electronic service and all other counsel by facsimile and regular mail.
/s/ William Cornelius
William Cornelius
6900538.1

–9–