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)

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