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