American Patents LLC v. Mediatek, Inc. et al

Western District of Texas, txwd-6:2018-cv-00339

RESPONSE AMERICAN PATENTS' REPLY TO DEFENDANTS' RESPONSE REGARDING DISPUTED PROTECTIVE ORDER PROVISIONS to 161 Response, by American Patents LLC.

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS WACO DIVISION AMERICAN PATENTS LLC, Plaintiff, v. CIVIL ACTION NO. 6:18-CV-339 MEDIATEK INC., ET AL., JURY TRIAL DEMANDED Defendants. AMERICAN PATENTS' REPLY TO DEFENDANTS' RESPONSE REGARDING DISPUTED PROTECTIVE ORDER PROVISIONS I. INTRODUCTION American Patents disagrees with much of what Defendants say in their response regarding the disputed protective order provisions. Dkt. 161. But American files this limited reply only to make three important points about the disputed provisions: Section 8(a). Defendants claim that the methods they use to share Source Code- designated materials with third parties are irrelevant to the procedures that American should be made to follow in reviewing them. Defendants say this is so because those third parties "ha[ve] a contractual relationship that governs the confidential and secure exchange and maintenance of the Source Code." Dkt. 161 at 3. But the protections defendants will have over Plaintiff's outside counsel and approved experts are far stronger than mere contracts. They are restrictions imposed by Court order, the violation of which is punishable with contempt sanctions. The fact that American's counsel and experts will have been ordered by the Court not to misuse defendants' information cannot be good cause to impose far more burdensome conditions here than Defendants use when dealing with third parties for commercial reasons. Section 11(a). Defendants say that allowing their confidential material to be stored outside the United States would improperly permit it to be reviewed by foreign consultants "over whom a United States court does not have jurisdiction." Dkt. 161 at 8. Defendants should read their proposal more carefully. By signing the Acknowledgement at the end of defendants' protective order, foreign consultants would have to agree that "I understand that contempt sanctions may be entered for violation of this Protective Order and further agree to submit to the jurisdiction of the United States District Court for the Western District of Texas for the purposes of enforcement of the terms of this Protective Order." Dkt. 159-1 at 37 (emphasis added). The cases that American cited allowing storage and review abroad rely heavily on similar submissions to the Court's jurisdiction—which may be why defendants did not even try to distinguish those cases. And defendants retain the right to object to each consultant hired by American before they review any confidential information, regardless of where it is stored. 1 Section 11(g). Defendants ask the Court to wait until the pretrial conference to resolve the dispute regarding American's use of confidential materials from a single defendant in the trial of all defendants. Dkt. 161 at 9. But these issues are unavoidable in a multi-defendant patent case like this one, and cannot easily be fixed on the eve of trial. Defendants have not waived their right to object to the evidentiary use of materials that were not disclosed to them during discovery because of Section 11(g). Nor do defendants try to explain what actions the Court could take so close to trial to resolve those objections without reopening discovery. In any event, these materials need only be disclosed to other Defendants' outside counsel, subject to the protective order's strict terms. Defendants apparently worry that their co-defendants' outside counsel cannot be trusted to comply with the protective order. But that is not a fear the Court should credit, especially since several defendants have hired the same counsel for this case. Dated: October 8, 2019 Respectfully submitted, /s/ Larry D. Thompson, Jr. Matthew J. Antonelli (admission pending) Texas Bar No. 24068432 matt@ahtlawfirm.com Zachariah S. Harrington (lead attorney) Texas Bar No. 24057886 zac@ahtlawfirm.com Larry D. Thompson, Jr. Texas Bar No. 24051428 larry@ahtlawfirm.com Christopher Ryan Pinckney (admission pending) Texas Bar No. 24067819 ryan@ahtlawfirm.com Michael D. Ellis Texas Bar No. 24081586 michael@ahtlawfirm.com ANTONELLI, HARRINGTON & THOMPSON LLP 4306 Yoakum Blvd., Ste. 450 Houston, TX 77006 (713) 581-3000 Stafford Davis 2 State Bar No. 24054605 sdavis@stafforddavisfirm.com Catherine Bartles Texas Bar No. 24104849 cbartles@stafforddavisfirm.com THE STAFFORD DAVIS FIRM The People's Petroleum Building 102 North College Avenue, 13th Floor Tyler, Texas 75702 (903) 593-7000 (903) 705-7369 fax Attorneys for American Patents LLC 3