Case 1:19-cv-02225-RGA Document 45 Filed 04/02/20 Page 1 of 3 PageID #: 1395
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`WILMINGTON
`RODNEY SQUARE
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`NEW YORK
`ROCKEFELLER CENTER
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`Anne Shea Gaza
`P 302.571.6727
`agaza@ycst.com
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`April 2, 2020
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`VIA CM/ECF
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`The Honorable Richard G. Andrews
`United States District Court
` for the District of Delaware
`844 North King Street
`Wilmington, DE 19801
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`Re:
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`Analog Devices, Inc. v. Xilinx, Inc., et al., C.A. No. 19-2225-RGA
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`Dear Judge Andrews:
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`Xilinx, Inc. and Xilinx Asia Pacific Pte. Ltd. (“Xilinx”) and Analog Devices, Inc.
`(“ADI”) have been unable to resolve their disagreements over two Protective Order provisions
`and request the Court’s assistance in resolving the following disputes: (1) whether Source Code
`and Design File printing limits should be set on a per-product basis or limited to a total page
`count (with continuous page limitations) for all accused products and (2) whether Confidential
`tier information can be shared with five in-house party representatives who are bound by the
`Protective Order, or only with three in-house counsel.
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`1. Per-Accused Product Source Code Printing Limits Will Avoid Prejudice to Xilinx
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`Xilinx accuses at least 42 diverse ADI products of infringement. (See D.I. 11 at
`Counterclaims ¶ 11.) By contrast, ADI accuses only one Xilinx product family—“Zynq
`UltraScale + RFSoC with RF Data Converters and Zynq UltraScale + RFSoC with RF Data
`Converters and SD-FED Cores”—of infringement. (D.I. 1 ¶ 24.) There are only 10 such
`products. (See https://www.xilinx.com/support/documentation/selection-guides/zynq-usp-rfsoc-
`product-selection-guide.pdf.)
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`The parties agree that printing of Source Code and Design File (e.g., circuit schematic)
`information should be limited. ADI proposes a limitation of 400 pages total for Source Code and
`Design Files, combined for all accused products, with a limit of 20 continuous pages. (Protective
`Order markup, attached to ADI letter brief, ¶ 40.) ADI’s tactical proposal will unduly limit
`Xilinx’s ability to take discovery on each accused product. In recognition of the disparate
`number of accused products at issue, Xilinx proposes that each side may print 50 pages of
`Source Code and 50 pages of Design Files for each accused product, and that the 20 continuous
`page limit apply only to Source Code. (Id.)
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`Young Conaway Stargatt & Taylor, LLP
`Rodney Square | 1000 North King Street | Wilmington, DE 19801
`P 302.571.6600 F 302.571.1253 YoungConaway.com
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`Case 1:19-cv-02225-RGA Document 45 Filed 04/02/20 Page 2 of 3 PageID #: 1396
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`Young Conaway Stargatt & Taylor, LLP
`The Honorable Richard G. Andrews
`April 2, 2020
`Page 2
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`Xilinx anticipates that Design Files and Source Code will be central to proving
`infringement in this case. Yet ADI’s proposal would allow Xilinx to print an average of less
`than 10 pages of Source Code and Design Files for each of the ADI accused products, and
`severely hamper the ability of Xilinx and its experts to assess infringement. Without adequate
`access to Source Code and Design Files, Xilinx will also be unable to attempt to categorize the
`ADI accused products or identify representative products in order to streamline its case as the
`litigation progresses.
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`ADI’s proposal to limit printing of Design Files to 20 continuous pages would further
`constrain Xilinx’s ability to conduct discovery and would be unworkable in practice. Large
`circuit schematics often require multiple pages to print. ADI’s proposed continuous page limit
`could result in Xilinx being able to obtain only partial schematics, particularly when combined
`with ADI’s inappropriately-low overall printing limitations.
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`Accepting ADI’s proposal would all but guarantee future motion practice on expanding
`printing limitations to permit Xilinx to obtain information for each accused product and to obtain
`complete versions of circuit schematics. Xilinx’s proposal, on the other hand, provides equal
`access for each accused product, with a printing volume likely sufficient for parity between the
`parties in undertaking their respective infringement analyses.
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`2. Permitting Non-Attorney Access to “Confidential” Tier Information Is Appropriate
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`The parties agree that a multi-tier protective order is warranted in this case. Xilinx
`proposes that up to five in-house employees (including counsel, officers, directors, and
`employees) be permitted access to “Confidential” information, the lowest tier of designated
`material. (Protective Order markup, attached to ADI letter brief, ¶ 30(a).) The disclosure of
`Confidential information would need to be reasonably necessary for the litigation and could be
`used only for purposes of the litigation. (Id. ¶¶ 25, 30(a).) ADI takes the position that the only
`client representatives who should be allowed access to “Confidential” tier information are three
`in-house counsel.
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`Xilinx’s proposal is the better approach. Highly sensitive information is protectable as
`Highly Confidential – Attorneys’ Eyes Only or Source Code/Design File information. At the
`same time, a limited number of businesspeople may access Confidential information for
`purposes of the litigation but may not use Confidential information for any other purpose (id. ¶
`25), and Xilinx would be open to having such businesspeople sign the Declaration to Be Bound
`by Protective Order.
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`The flexibility resulting from Xilinx’s proposal will enhance each party’s ability to assess
`the merits of the case and may facilitate settlement discussions. For such reasons, parties often
`agree to permit businessperson access to Confidential tier information. See, e.g., TQ Delta, LLC
`v. ZyXEL Commc’ns, Inc., No. 13-cv-02013-RGA, D.I. 55 ¶ 7.2(b) (D. Del. Oct. 6, 2014) (Ex.
`A); KOM Software Inc. v. Hitachi Vantara Corp., No. 18-cv-158-RGA, D.I. 34 ¶ 13(d) (D. Del.
`Sept. 26, 2018) (Ex. B).
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`Case 1:19-cv-02225-RGA Document 45 Filed 04/02/20 Page 3 of 3 PageID #: 1397
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`Young Conaway Stargatt & Taylor, LLP
`The Honorable Richard G. Andrews
`April 2, 2020
`Page 3
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`Xilinx’s proposal is particularly appropriate in this case, in which there may be relevant
`non-public communications between the parties. Under Xilinx’s proposal these materials could
`be shared with businesspeople who have a voice in the management of this litigation to help
`guide and potentially resolve this case. But these materials could not be shared under ADI’s
`proposal in the event one party no longer maintains those documents.
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`ADI’s approach will require keeping all client businesspeople in the dark about all
`protected information, even information that does not warrant Highly Confidential – Attorneys’
`Eyes Only treatment. ADI’s proposal will also remove the parties’ flexibility to downgrade
`disputed confidentiality designations to allow client access, without rendering that information
`entirely public.
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`Xilinx’s proposed clause is ultimately more efficient and more likely to lead to the
`effective management of this case.
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`Should Your Honor have any questions or concerns regarding the foregoing or the
`enclosures, counsel are available at the Court’s convenience.
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`Respectfully,
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`/s/ Anne Shea Gaza
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`Anne Shea Gaza (No. 4093)
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`Enclosures
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`cc: All Counsel of Record (CM/ECF and E-mail)
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