399 PARK AVENUE
`SUITE 3600
`NEW YORK, NY 10022
`
`212 980 7400 TEL
`212 980 7499 FAX
`ROBINSKAPLAN.COM
`
`BRYAN J. VOGEL
`212 980 7403 TEL
`
`BVOGEL@ROBINSKAPLAN.COM
`
`REDACTED PUBLIC VERSION
`
`VIA EDIS AND EMAIL
`
`May 13, 2019
`
`Hon. MaryJoan McNamara
`Administrative Law Judge
`U.S. INTERNATIONAL TRADE COMMISSION
`500 E Street, S.W.
`Washington, D.C. 20436
`
`Re: Certain LTE- and 3G-Compliant Cellular Communication Devices,
`Inv. No. 337-TA-1138
`
`Dear Judge McNamara:
`
`On behalf of Complainant INVT SPE LLC (“INVT”) and the relevant third
`parties, we write regarding the May 16, 2019 teleconference and to correct several
`inaccuracies in Respondents’ Status Letter regarding the same. INVT disagrees with
`several characterizations in Respondents’ Letter, which Respondents filed without
`informing INVT.
`
`INVT and the relevant third parties have complied with the ALJ’s April 3, 2019
`Order. Numerous requested documents have been produced to Respondents following
`the March 4, 2019 telephonic hearing, including:
`
`
`
`Ms. Anna Johns’s—former in-house counsel for non-party
`Inventergy, Inc. (“Inventergy”)—FRAND notes detailing her
`FRAND methodology and analysis. Ms. Johns’s notes
`reference statistics and studies that were previously
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`May 13, 2019
`Page 2
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`
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`
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`
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`
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`produced to Respondents during discovery and cited in
`INVT’s licensing letters;
`
`Third-party Fortress Investment Group, LLC’s (“Fortress”)
`
`Fortress’s
`;
`
`Non-privileged e-mail communications from INVT and/or
`Fortress relating to
`, as well as
`additional documents from the original privilege log; and
`
`Over 2,000 additional e-mail communications and
`documents from Inventergy in-house attorneys, Ms. Johns
`and Mr. Saxon Noh, as requested by Respondents, gathered
`using Respondents’ own proposed search terms.
`
`A substantively revised privilege log (“Revised Log”) was also produced to
`Respondents on April 12, 2019, detailing names and titles of document creators and
`recipients (to the extent available); and additional descriptions of documents where an
`attorney was expressly providing legal advice/mental impressions and/or documents
`were created in anticipation of litigation. A separate Inventergy privilege log
`(“Inventergy Log”) was produced to Respondents on May 7, 2019, related to the e-mail
`communications collected from Inventergy’s in-house counsel, Ms. Johns and Mr. Noh,
`referenced above. See Ex. 1.
`
`Despite the efforts above, Respondents seek to re-litigate fact discovery. Each of
`the issues raised in Respondents’ letter is addressed below.
`
`1 Respondents were previously informed that Fortress’s 2016 Memo
`
` Ex. 2 at 2.
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`May 13, 2019
`Page 3
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`I.
`
`The Revised Privilege Log Dated April 12, 2019
`
`INVT informed Respondents, as early as March, that certain names for e-mail
`chains on the original privilege log were populated based on the only metadata
`available—the “FROM” and “TO” metadata pulled from the most recent (i.e., “top-
`level”) e-mail in the chain. Ex. 2 at 2-3. Indeed, as the ALJ explained during the March 4,
`2019 teleconference, different individuals “jump[ing] in and out at different times” in a
`document may “complicate[]” the privilege analysis, which is often “tough enough in
`large corporations.” Hearing Tr. at 130:18-25.
`
`To address this concern, counsel for INVT and third parties undertook an
`additional, substantial review of documents on the privilege log, including manually
`recording names not captured by the “top-level” metadata. The Revised Log records
`those additional names in the new column entitled “Additional Participants.”
`
`Respondents’ Letter attempts to manufacture several disputes relating to the
`Revised Log without first conferring with INVT or third parties. See Respondents’
`Letter at 2-3. None of these purported issues should be credited.
`
`First, Respondents take issue with five documents identifying “Michael Kallus as
`sole author or recipient . . . .” Respondents’ Letter at 3. As explained by each of the
`corresponding log descriptions, while Mr. Kallus was the custodian for those
`documents, the documents incorporate
`
`. Revised Log at INVTPV-00002, 09,
`11-13 (emphases added). Each is privileged work product.
`
`Second, Respondents reference “three entries . . . identifying Joseph Beyers . . . as
`the sole author or recipient.” Respondents’ Letter at 3. Those entries explain that the
`respective documents contain privileged attorney comments and legal advice within
`draft legal agreements received by Mr. Beyers. See Revised Log at INVTPV-00135, 136,
`154
`
`Third, Respondents claim that a number of entries “lack any participants who
`are identified as attorneys . . . .” Respondents’ Letter at 3. Respondents are wrong—the
`corresponding descriptions establish the basis for privilege and/or work product by
`describing the privileged subject matter
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`May 13, 2019
`Page 4
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`and/or the relevant counsel
`See Revised Log at INVTPV-00001, 14-18, 21-30, 32-34, 36, 126, 335, 425, 437, 457, 555,
`1463, 1465, 1466, 1826 (emphases added).
`
`Fourth, Respondents contend that various “additional participants” on the
`Revised Log are third parties. See Respondents’ Letter at 3-4. As explained above, these
`“additional participants” are names pulled from earlier e-mails in e-mail chains—
`including
`
`As such, those third-party participants were not privy to any privileged
`communication, including advice sought in the most recent “top-level e-mail.” For
`example, the first e-mail identified by Respondents, INVTPV-00650, is
`
` Revised Log at INVTPV-00650. Tellingly, the “FROM,” “TO,” and
`“COPIED” columns do not list any third parties.
`
`II.
`
`Respondents’ Improper Request for Additional Testimony
`
`Respondents incorrectly claim that “INVT has refused to provide corporate
`testimony relating to patent valuation, patent monetization and licensing, and technical
`analysis for FRAND.” Respondents’ Letter at 5 (citing the Samsung license, technical
`analyses, and disputed monetization documents).
`
`First, INVT’s corporate representative testified for over an hour on the Samsung
`license alone. See Ex. 3 at 322:14-351:12. INVT and other parties also produced hundreds
`of documents and communications related to the Samsung license, including licensing
`communications, term sheets, and draft agreements. To the extent Respondents seek
`“INVT’s understanding—both numerical and qualitative—of the financial terms” of the
`Samsung License, INVT has repeatedly provided that understanding through discovery
`responses, documents, and testimony, and Respondents had every opportunity to
`explore that subject matter during INVT’s corporate deposition. See id. (discussing the
`Samsung negotiations, the Samsung license, monetary payments, and FRAND).
`Respondents’ request for further testimony has no basis in fact.
`
`Second, multiple witnesses confirmed that Inventergy performed its “technical
`analysis” related to FRAND by “mapping” the Asserted Patents to the relevant
`technical standards. For example, Inventergy’s former General Counsel testified
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`May 13, 2019
`Page 5
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` Ex. 4 at 280:8-
`282:20. Additionally, Respondents received during discovery the materials relied on by
`Inventergy’s former in-house counsel, Ms. Johns, in developing Inventergy’s FRAND
`methodology—which included a study detailing that
`
`Ex. 5 at 9-10.
`
`Respondents also questioned Inventergy’s former technical analyst, Mr. Jukka
`Hyvarinen, about whether certain patents
`
`Ex. 6 at 62:10-63:5, 157:14-21. Mr. Hyvarinen confirmed
`
` Id. at 62:10-63:5
`
`157:14-21
`
`Respondents’ request for additional FRAND-related testimony is also
`contradicted by their argument that Ms. Johns waived privilege over her “mental
`impressions concerning her FRAND methodology” by providing those details during
`her deposition. Respondents’ Letter at 4. Although Ms. Johns walked Respondents’
`counsel step-by-step, through
`—and further provided the studies and numbers underlying that
`FRAND calculation—Ms. Johns did not waive privilege over her mental impressions
`regarding that methodology. Ms. Johns’s attorney mental impressions, opinions, and
`analyses of Inventergy’s legal strategies are privileged work product that should be
`“afforded almost absolute protection.” See In re Linerboard Antitrust Litig., 237 F.R.D.
`373, 381 (E.D. Penn. Sept. 5, 2006) (discussing privilege and work product but
`determining only the latter).
`
`III.
`
`Supplemental Document Productions
`
`The remaining issues are moot. Respondents have received (1) Ms. Johns and Mr.
`Noh’s e-mails, which Inventergy identified using Respondents’ proposed search
`terms—a significant concession by Inventergy made in the interest of resolving the
`disputed issues; (2) documents INVTPV-00621 and INVTPV-01294 identified in
`Respondents’ Letter; (3) the complete author information for entries INVTPV-00037,
`219, 240, and 253; and (4) the metadata underlying Ms. Johns’s FRAND notes.
`
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`May 13, 2019
`Page 6
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`We remain available to answer any questions your Honor may have, including
`through the telephonic conference or otherwise, at your Honor’s convenience.
`
`Respectfully submitted,
`
`/s/ Bryan J. Vogel
`Bryan J. Vogel
`
`Counsel for INVT SPE LLC and
`Third Parties
`
`REDACTED PUBLIC VERSION
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`

`

`CERTIFICATE OF SERVICE
`
`I, Bryan J. Vogel, hereby certify that on May 21, 2019, a true and correct copy
`of the foregoing documents have been served on the parties listed below:
`
`The Honorable Lisa R. Barton
`Secretary to the Commission
`U.S. INTERNATIONAL TRADE COMMISSION
`500 E Street, SW
`Washington, D.C. 20436
`
`The Honorable MaryJoan McNamara
`Administrative Law Judge
`U.S. INTERNATIONAL TRADE COMMISSION
`500 E Street, SW, Room 317
`Washington, D.C. 20436
`Jae.Lee@usitc.gov
`Michael.Buckler@usitc.gov
`
`
`
`
`
`
`
`
`Via EDIS
`Via Hand Delivery
`(2 copies)
`Via Federal Express
`Via First Class Mail
`Via Electronic Mail
`
` Via EDIS
` Via Hand Delivery
`(2 copies)
` Via Federal Express
` Via First Class Mail
` Via Electronic Mail
`
`Mr. Reginald Lucas, Esq., Investigative Attorney
`Office of Unfair Import Investigations
`U.S. INTERNATIONAL TRADE COMMISSION
`500 E Street, SW, Suite 401
`Washington, D.C. 20436
`Reginald.Lucas@usitc.gov
`
` Via EDIS
` Via Hand Delivery
` Via Federal Express
` Via First Class Mail
` Via Electronic Mail
`
`For Respondent Apple Inc.
`Robert A. Appleby, P.C.
`KIRKLAND & ELLIS LLP
`601 Lexington Avenue
`New York, NY 10022
`Apple-Inventergy@kirkland.com
`
` Via EDIS
` Via Hand Delivery
` Via Federal Express
` Via First Class Mail
` Via Electronic Mail
`
`For Respondents HTC Corp. and HTC America, Inc.
`Stephen S. Korniczky
`SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
`12275 El Camino Real, Suite 200
`San Diego, California 92130
`LegalTm-HTC-INVT-ITC@sheppardmullin.com
`
` Via EDIS
` Via Hand Delivery
` Via Federal Express
` Via First Class Mail
` Via Electronic Mail
`
`REDACTED PUBLIC VERSION
`
`

`

`For Respondents ZTE Corp. and ZTE (USA), Inc.
`Jay H. Reiziss
`MCDERMOTT WILL & EMERY LLP
`500 North Capitol Street, NW
`Washington, D.C. 20001
`ZTEINVT@mwe.com
`
` Via EDIS
` Via Hand Delivery
` Via Federal Express
` Via First Class Mail
` Via Electronic Mail
`
`Dated: May 21, 2019
`
`
`
` /s/ Bryan J. Vogel
`Bryan J. Vogel
`ROBINS KAPLAN LLP
`399 Park Avenue, Suite 3600
`New York, NY 10022
`
`REDACTED PUBLIC VERSION
`
`