Wi-LAN, Inc. et al v. LG Electronics, Inc. et al

RESPONSE re Response - Other, Wi-LAN's Response to #123 LG's Request to File A Supplemental Memorandum

S.D. Cal.April 26, 2018

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Victor M. Felix, SBN 179622 Victor.Felix@procopio.com PROCOPIO, CORY, HARGREAVES & SAVITCH LLP 525 B Street, Suite 2200 San Diego, CA 92101 Tel. (619) 515-3229 Fax (619) 744-5409 Leslie V. Payne (TX Bar No. 00784736) (admitted Pro Hac Vice) lpayne@hpcllp.com Eric J. Enger (TX Bar No. 24045833) (admitted Pro Hac Vice) eenger@hpcllp.com Christopher M. First (TX Bar No. 24095112) (admitted Pro Hac Vice) cfirst@hpcllp.com HEIM, PAYNE & CHORUSH LLP 1111 Bagby St., Suite 2100 Houston, TX 77002 T: (713)221-2000 F: (713)221-2021 Attorneys for Plaintiffs Wi-LAN UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA WI-LAN INC.; WI-LAN USA, INC.; & WI-LAN LABS, INC., Plaintiffs, v. LG ELECTRONICS, INC.; LG ELECTRONICS U.S.A., INC.; LG ELECTRONICS MOBILECOMM U.S.A., INC., Defendants. Case No.: 3:17-cv-00358-BEN-MDD WI-LAN’S RESPONSE TO LG’S REQUEST TO FILE A SUPPLEMENTAL MEMORANDUM TO ADDRESS WI-LAN’S ALLEGED VIOLATIONS IN CONNECTION WITH THE JOINT MOTION TO RESOLVE A DISCOVERY DISPUTE Case 3:17-cv-00358-BEN-MDD Document 124 Filed 04/26/18 PageID.16542 Page 1 of 5 WI-LAN’S RESPONSE TO LG’S REQUEST TO FILE SUPPLMENTAL MEMORANDUM - 1 - 3:17-CV-00358-BEN-MDD 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LG alleges (with unnecessary bravado and hyperbole) that Wi-LAN’s arguments in its Memorandum regarding the so-called “redaction issue” (ECF No. 119) amount to a “deliberate” “ambush” that “can only be viewed as intentional.” (ECF No. 123 at 1-3.) Not true. This is merely an attempt by LG to muddy the waters and draw the Court’s attention away from the real issue—LG’s inadequate document production. First, LG argues that Wi-LAN was “engaging in discovery ambush because Wi- LAN’s extensive Redaction Issue argument was not included in the parties’ Joint Motion.” (ECF No. 123 at 3.) This is not true. On April 11, Wi-LAN provided an initial draft joint discovery motion to LG. (See Ex. 1.) That initial draft noted that LG “produced only a single document that appears to originate from within LG’s design team on the LG G6, and that document has had critical portions redacted.” (Ex. 2.) This language is identical to the language that appeared in the final joint discovery motion (ECF No. 117). Moreover, subsequent drafts of the joint discovery motion further referenced LG’s “improper redactions.” (Ex. 3, 4.) LG cannot credibly claim it was unaware of this issue until after receiving Wi-LAN’s supporting memorandum. Second, LG argues that Wi-LAN’s counsel improperly “refused to provide a draft of Wi-LAN’s Memorandum so that LG could see what material Wi-LAN was requesting the Court seal.” (ECF No. 123 at 3.) Incorrect. As an initial matter, nothing in the discovery motion rules requires a party to provide such drafts in advance of filing. Indeed, in past discovery motions, LG did not provide advance drafts of its memorandums to Wi-LAN. But more importantly, Wi-LAN never “refused” to provide its draft memorandum because LG never asked for it. Quite the opposite: when Wi-LAN asked LG to join in its motion to seal its memorandum (and informed LG of the specific bates numbers of the confidential LG documents Wi-LAN intended to attach under seal to its memo), LG declined because it had not reviewed the memorandum and stated that “Wi-LAN should file its own motion to seal its separate memorandum.” (Ex. 5.) Third, LG argues that Wi-LAN never previously raised the issues encompassed by the memorandum. (ECF No. 123 at, e.g., 1.) This, too, is incorrect. The parties have Case 3:17-cv-00358-BEN-MDD Document 124 Filed 04/26/18 PageID.16543 Page 2 of 5 WI-LAN’S RESPONSE TO LG’S REQUEST TO FILE SUPPLMENTAL MEMORANDUM - 2 - 3:17-CV-00358-BEN-MDD 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 disputed the sufficiency of LG’s document production since October. One of the primary issues encompassed in those discussions was LG’s failure to produce internal engineering and design documents regarding the accused products. The parties discussed the lack of internal engineering and design documentation extensively, on countless different occasions. Indeed, Wi-LAN filed a motion in January seeking these same documents. (See ECF No. 72 (“[w]hile LG has produced high-level user guides and service manuals for many of the Accused Products, LG appears to have withheld the most critical internal documents, such as the documents describing its design choices and testing with regard to LTE.”)) The Court denied Wi-LAN’s motion on timeliness grounds, but noted “serious concerns with Defendants rather cavalier approach to the requirements of Fed. R. Civ. P. 34, which governs requests for production.” (ECF No. 91.) The Court ordered that Defendants “supplement their production and responses under Fed. R. Civ. P. 26(e), upon pain of serious sanctions under Rules 26(g) and 37” and provide other information “within 14 days of th[at] Order” (i.e., by February 20, 2018). (ECF No. 91 at 3, 5.) Instead of supplementing its responses, LG sent a short letter to Wi-LAN stating that it was “not withholding any documents in response to Wi-LAN RFP Nos. 27 and 30, other than to the extent such documents contain privileged information or attorney work product.” (Ex. 6.) Approximately a month later, and after still more discussions regarding these same documents, LG supplemented its production. As it turns out, not only did LG have internal design and engineering documentation that it had not previously produced, but it intentionally withheld portions of those documents on non-privilege grounds— contrary to the representations in its letter. LG’s position that its production of heavily redacted versions of its internal design and engineering documents after extensive delay (the same documents the parties have been discussing for months) somehow nullifies the entire meet-and-confer process is untenable, especially in light of this Court’s rules that require parties to bring discovery disputes to the Court without delay. (See, e.g., ECF No. 91.) In sum, the issue is the same as it has been since the beginning: LG is intentionally withholding critical internal documents and information that Wi-LAN needs to build its Case 3:17-cv-00358-BEN-MDD Document 124 Filed 04/26/18 PageID.16544 Page 3 of 5 WI-LAN’S RESPONSE TO LG’S REQUEST TO FILE SUPPLMENTAL MEMORANDUM - 3 - 3:17-CV-00358-BEN-MDD 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 case. The fact that LG still refuses to provide unredacted versions of these internal design and engineering documents emphasizes this point. Finally, Wi-LAN strongly disagrees with LG’s characterizations that it is “desperate to manufacture a discovery dispute where none exists,” as well as various other ill motives LG assigns to Wi-LAN in LG’s brief. Given the Court’s admonition against personal attacks on counsel or parties (See J. Dembin Civil Chambers Rules at VIII), Wi-LAN believes that it need not respond to these attacks. Nonetheless, if no discovery dispute exists, it is telling that LG’s “supplemental brief” never explains the propriety of its redactions. Dated: April 26, 2018 By: /s/ Christopher M. First Victor M. Felix, SBN 179622 Victor.Felix@procopio.com PROCOPIO, CORY, HARGREAVES & SAVITCH LLP 525 B Street, Suite 2200 San Diego, CA 92101 Tel. (619) 515-3229 Fax (619) 744-5409 Leslie V. Payne TX. Bar No. 00784736 (admitted pro hac vice) lpayne@hpcllp.com Eric J. Enger TX. Bar No. 24045833 (admitted pro hac vice) eenger@hpcllp.com Christopher M. First TX. Bar No. 24095112 (admitted pro hac vice) cfirst@hpcllp.com HEIM, PAYNE & CHORUSH LLP 1111 Bagby St., Suite 2100 Houston, TX 77002 T: (713)221-2000 F: (713)221-2021 Attorneys for Plaintiffs Wi-LAN. Case 3:17-cv-00358-BEN-MDD Document 124 Filed 04/26/18 PageID.16545 Page 4 of 5 WI-LAN’S RESPONSE TO LG’S REQUEST TO FILE SUPPLMENTAL MEMORANDUM - 4 - 3:17-CV-00358-BEN-MDD 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF SERVICE I hereby certify that on April 26, 2018, I served this WI-LAN’S RESPONSE TO LG’S REQUEST TO FILE A SUPPLEMENTAL MEMORANDUM TO ADDRESS WI-LAN’S ALLEGED VIOLATIONS IN CONNECTION WITH THE JOINT MOTION TO RESOLVE A DISCOVERY DISPUTE via ECF on the following: Joseph S. Leventhal Dinsmore & Shohl LLP 655 West Broadway, Suite 840 San Diego, CA 92101 joseph.leventhal@dinsmore.com Richard D. Harris James J. Lukas, Jr. Greenberg Traurig, LLP 77 West Wacker Drive, Suite 3100 Chicago, IL 60601 harrisr@gtlaw.com lukasj@gtlaw.com By: /Christopher M. First/ Christopher M. First Case 3:17-cv-00358-BEN-MDD Document 124 Filed 04/26/18 PageID.16546 Page 5 of 5