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

Filing 484

RESPONSE in Opposition re 475 MOTION for Attorney Fees filed by WI-LAN Inc.. (Attachments: # 1 Exhibit A - July 9 PM Tr, # 2 Exhibit B - 2013-03-21 Pre-Trial Hearing Transcript, # 3 Exhibit C - July 10 AM Tr, # 4 Exhibit D - Lanning report excerpt, # 5 Exhibit E - Email from Justin Cohen to Ajeet Pai (June 23, 2013), # 6 Exhibit F - July 12 AM Tr, # 7 Text of Proposed Order)(Weaver, David)

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Exhibit B 1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TYLER DIVISION 2 3 WI-LAN, INC. 4 5 -vsALCATEL-LUCENT USA, INC., ET AL ) ) ) ) ) ) DOCKET NO. 6:10cv521 Tyler, Texas 9:00 a.m. March 21, 2013 6 ************ 7 WI-LAN, INC. ) ) ) ) ) 8 -vs9 HTC DOCKET NO. 6:13cv252 10 11 TRANSCRIPT OF PRETRIAL HEARING BEFORE THE HONORABLE LEONARD DAVIS, UNITED STATES CHIEF DISTRICT JUDGE 12 13 A P P E A R A N C E S 14 15 (SEE ATTORNEY SIGN-IN SHEETS ATTACHED TO THE MINUTE ENTRY OF THIS HEARING.) 16 17 18 19 COURT REPORTER: MS. SHEA SLOAN 211 West Ferguson Tyler, Texas 75702 20 21 22 23 24 25 Proceedings taken by Machine Stenotype; transcript was produced by a Computer. 16 1 What happened is when those showed up on the 2 privilege log as privileged, we produced the attachments 3 separately, and we produced those before -- 4 (Phone ringing.) 5 MR. WEAVER: 6 THE COURT: 7 8 One moment. I am the only one that can happen to. (Laughter.) 9 10 So if you look -- MR. WEAVER: My phone will not be ringing, Your Honor. 11 So if you look at what was produced in this case, 12 the 88,000 pages, as I said there is approximately 20,000 of 13 those pages that are pdf's or some other form of document like 14 that. 15 We did an analysis of those. What percentage of 16 those pdf's were long ago produced in this case? 17 found, over 75 percent of those pdf's were identical copies 18 were produced. 19 there was a copy of the document that was produced that was 20 virtually identical. 21 Okay? 22 their hands. What we Now, we haven't been able to find out whether This is a forensically identical copy. So most of this production, they have already got in 23 Let's look at the email as an example. You can see 24 on this document, Your Honor, that there is approximately 25 37,000 pages of the production are redacted copies of emails; 17 1 and contrary to what HTC suggested, Your Honor, of the 80 2 documents we produced for in camera inspection or they 3 identified for in camera inspection, it is nonsense that 75 4 percent of those were non-privileged. 5 They were produced with redactions. That doesn't 6 make them non-privileged. 7 parts of the document. 8 had no privilege assertion whatsoever associated with it. 9 The redactions were the privileged So there is no 75-percent bucket that The 12 documents, in fairness, Your Honor, are a 10 mistake. 11 defendants, we had produced a number of documents at the very 12 tail end of discovery and pulled them off of our privilege 13 log. 14 and produce those to the defendants. 15 During some of the meet-and-confers with the We decided to waive the assertion of privilege on those We didn't correct the privilege log and send out a 16 new privilege log. 17 operating under -- again, our mistake -- was not updated, and 18 they ended up picking a number of documents that we had 19 already produced. 20 selected those documents. 21 produced earlier in the litigation, and we simply had 22 neglected to update our privilege log. 23 So the privilege log that HTC was So we didn't waive privilege when they Those documents had already been Our mistake. But let me go to the emails for a second. So out of 24 the nearly 37,000 pages of emails, Your Honor, 28,000 pages 25 are follow-ons in the strings, and those strings were produced 18 1 previously. 2 So using my example of you have got 10 3 back-and-forth communications in an email string, you will see 4 that the prior portions of those strings were produced. 5 didn't produce them in a redacted form. 6 string on our email, but they got the six back-and-forth 7 communications using my example. 8 this production, Your Honor, beyond what they have got. 9 So we We held the whole There is very little new in Now, Mr. Bader called me up and asked me if we would 10 agree to a continuance. 11 have got 88,000 pages of documents to look at. 12 and we looked at all 88,000 pages of those documents in 48 13 hours. 14 And we said, on what basis? Well, we And I said, And we didn't just look at them to see if there was 15 something relevant in there or to see if they were duplicative 16 because of these emails, Your Honor. 17 this, because it was pre the discovery order in this case, the 18 electronic discovery order, every custodian who got a copy of 19 that email, well, guess what, it is on our privilege log. 20 it is a duplicate. 21 that is 20 pages long, that is 200 pages of production that we 22 pushed out the door. 23 The way we collected And So we have got 10 recipients of an email It is the same email. So that is where we find ourselves, Your Honor, is 24 that when I said, Mr. Bader, tell me what it is that you need 25 the time for. I just want to look at the documents. There

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