Case 2:22-cv-00134-JRG-RSP Document 64 Filed 09/08/22 Page 1 of 9 PageID #: 941
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`Case No.: 2:22-cv-00134-JRG-RSP
`
`JURY TRIAL DEMANDED
`
`
`ADVANCED MICRO DEVICES, INC., ET
`AL.,
`
`
`
`
`
`TCL INDUSTRIES HOLDINGS CO., LTD.;
`ET AL.,
`
`
`
`
`
`
`
`
`
`
`Plaintiffs,
`
`
`
`v.
`
`Defendants.
`
`
`JOINT MOTION FOR ENTRY OF PARTIALLY DISPUTED PROTECTIVE ORDER
`
`Plaintiffs Advanced Micro Devices, Inc. and ATI Technologies ULC (collectively,
`
`“AMD” or “Plaintiffs”) and Defendants Realtek Semiconductor Corp. (“Realtek”) (“Defendant”),
`
`respectfully move the Court for entry of a Partially Disputed Discovery Order. AMD proposes the
`
`Protective Order, attached hereto as Exhibit A. Realtek proposes the Protective Order, attached
`
`hereto as Exhibit B.
`
`The parties have met and conferred and agree on all provisions of the proposed Protective
`
`Order for this case with the exception of the following disputes.
`
`I.
`
`Plaintiffs’ Position:
`a.
`
`Scope of Prosecution Bar in Paragraph 11 and Paragraph
`28(B)(xviii)
`
`AMD proposes edits to paragraph 11 to make it clear that the scope of subject patents, i.e.,
`
`“pertaining to the particular confidential information disclosed in the HIGHLY SENSITIVE
`
`MATERIAL” is aligned with the scope in paragraph 28(B)(xviii) of the proposed protective order
`
`in this case, i.e., the prosecution bar entered into by the ITC in the co-pending 337-TA-1318 case
`
`1
`
`

`

`Case 2:22-cv-00134-JRG-RSP Document 64 Filed 09/08/22 Page 2 of 9 PageID #: 942
`
`
`
`(and specifically proposed by Realtek), which is “related to the particular confidential information
`
`disclosed in the CONFIDENTIAL SOURCE CODE – ATTORNEYS’ EYES ONLY
`
`INFORMATION.” Otherwise, there is an inconsistency between broader “the field of the
`
`invention of the patents in suit” in paragraph 11, and the subject matter of the subject patents as
`
`stated in paragraph 28(B)(xviii).
`
`Paragraph 28(B)(xviii) has been in the parties’ exchanged drafts for weeks now; shortly
`
`before the protective order submission was due on September 8, 2022, Realtek suddenly changed
`
`course and stated that it believed paragraph 28(B)(xviii) should be removed because it is not in the
`
`Model Protective Order. However, several of the parties’ agreed-to provisions in paragraph 28 are
`
`not in the Model Protective Order, but they are appropriate because they are already entered in the
`
`337-TA-1318 ITC case. AMD respectfully submits that paragraph 28(B)(xviii), which is a
`
`provision Realtek advocated for in the 337-TA-1318 case, should remain as part of the source code
`
`provisions of paragraph 28, and paragraph 11 should be aligned thereto.
`
`Further, Realtek has not shown any need for such a broader set of subject matter, such as
`
`“the field of the invention of the patents in suit,” to apply to any specific counsel in this case. “The
`
`court is required to ‘examine all relevant facts surrounding counsel’s actual preparation and
`
`prosecution activities, on a counsel-by-counsel basis’ to determine the risk of inadvertent
`
`disclosure” (see Tech Pharmacy Servs., LLC v. Alixa Rx LLC, Civil Action No. 4:15-CV-00766,
`
`2016 U.S. Dist. LEXIS 142965, at *4 (E.D. Tex. Oct. 17, 2016)), and Realtek has not identified
`
`any counsel representing AMD in this action, nor any specific counsel’s activities, which would
`
`necessitate broader protections than the scope of paragraph 28(B)(xviii). In re Deutsche Bank
`
`Trust Co. Americas, 605 F.3d 1373, 1381 (Fed. Cir. 2010). AMD respectfully requests its proposal
`
`to be adopted for alignment with paragraph 28(B)(xviii).
`
`2
`
`

`

`Case 2:22-cv-00134-JRG-RSP Document 64 Filed 09/08/22 Page 3 of 9 PageID #: 943
`
`
`
`b.
`
`Source Code Computer Present at Depositions and Trial
`
`Realtek, in its opposition to AMD’s pending motion to stay, argued that this case can
`
`benefit from cross-use of discovery from the ITC action (Dkt. No. 43 at 12 (Aug. 5, 2022)) yet in
`
`this particular instance is seeking more restrictive limits than the protections in the ITC. In
`
`particular, Realtek is seeking to remove the requirement for the source code supplier to provide a
`
`searchable source code computer to be present at depositions and the trial. See Ex. A at ¶
`
`28(B)(x)(4).
`
`AMD needs the searchable computer to effectively examine party and non-party witnesses
`
`who are familiar with the code, on how the code works. This includes the need to examine Realtek
`
`witnesses on their understanding of the code (even if it is ARM-based), how it operates, and how
`
`it is incorporated into Realtek and TCL products. The majority of source code at issue in this case
`
`is ARM-based source code.
`
`For example, ARM identifies on its website that its licensees can access ARM’s software
`
`products from anywhere in the world through an electronic download hub using “[thei]r [web]
`
`browser in the usual manner.” See “Product Download Hub Getting Started Guide for Arm
`
`Partners,” dated August 2022
`
`(accessed Sept. 7, 2022), at 2, 25, available at
`
`https://developer.arm.com/documentation/107572/latest. If Realtek apparently can access its
`
`ARM-based code from its own web browsers, on their own computers anywhere in the world,
`
`including in the deposition or trial room, Realtek does not provide a justification for insisting that
`
`AMD’s counsel and experts under the protective order not be able to access the same searchable
`
`code on a computer in the same room. Indeed, Realtek has been ordered to provide such a
`
`computer at depositions and trial in the co-pending 337-TA-1318 proceedings.
`
`Realtek has previously agreed to making a secure computer available at depositions and
`
`the trial in other ITC proceedings, and so it is unclear why the restriction was unnecessary then,
`
`3
`
`

`

`Case 2:22-cv-00134-JRG-RSP Document 64 Filed 09/08/22 Page 4 of 9 PageID #: 944
`
`
`
`but necessary now. See, e.g., Certain Video Processing Devices, Components Thereof, and Digital
`
`Smart Televisions Containing the Same, 337-TA-1222, Order No. 14 at 10, 12 (Dec. 9, 2020)
`
`(source code protective order agreed-upon by TCL and Realtek requiring that “[t]he supplier shall,
`
`on request, make a searchable electronic copy of the Source Code available on a secure computer
`
`during depositions and evidentiary hearing testimony of witnesses who would otherwise be
`
`permitted access to such Source Code”). If that were not enough, non-party ARM also agreed in
`
`the 337-TA-1222 action to allowing remote computers at the evidentiary hearing. See, e.g.,
`
`Certain Video Processing Devices, Components Thereof, and Digital Smart Televisions
`
`Containing the Same, 337-TA-1222, Order No. 33 (Feb. 4, 2021) (Non-Party ARM PO
`
`Addendum) (“…remote access computers (computers with remote secure access to the standalone
`
`computer(s) provided pursuant to paragraph 19 of the Protective Order) will be made available at
`
`live and remote depositions and hearings. If the producing party does not agree to allow remote
`
`access computers at live depositions and hearings, the parties (including Arm) will meet and confer
`
`to discuss suitable logistics for managing the transport of the standalone computer(s) containing
`
`Arm Source Code to the site of the deposition or hearing”). Further, this provision is in place
`
`already in the 337-TA-1318 proceedings, from which Realtek claims significant efficiencies can
`
`be drawn from cross-use of discovery.
`
`The Realtek and non-party witnesses that will be examined in this case are not going to be
`
`familiar with hard copies, as they do not work with hard copy printouts in their ordinary course of
`
`business. The code, moreover, is voluminous, and it is overly time-consuming and often
`
`impractical to examine and move through the code without the benefit of a searchable computer.
`
`Fundamental fairness, moreover, requires that AMD have access to a searchable computer at the
`
`depositions and trial, given that party and third party fact witnesses may offer altogether new
`
`4
`
`

`

`Case 2:22-cv-00134-JRG-RSP Document 64 Filed 09/08/22 Page 5 of 9 PageID #: 945
`
`
`
`testimony at depositions and the evidentiary hearing that were not previously included in the
`
`hardcopy printouts, disclosed in contention interrogatory responses, or disclosed in expert reports.
`
`Without rapid access to searchable source code, AMD’s counsel will be artificially handicapped
`
`in its ability to check the assertions of fact and expert witnesses in real time. The Court’s interest
`
`in developing a complete and accurate evidentiary record is paramount but would be impinged by
`
`Realtek’s proposal.
`
`AMD’s concerns that fact witnesses, including party witnesses and/or non-party corporate
`
`representatives, may provide unexpected testimony not disclosed in contentions or expert reports
`
`are not mere speculation. ARM has previously offered non-infringement testimony and testified
`
`that “machine readable portions” of the source code are the “authoritative statement of how the
`
`product operates.” Certain Consumer Electronics and Display Devices with Graphics Processing
`
`and Graphics Processing Unites Therein; Inv. No. 337-TA-932, EDIS Doc. ID 559506, Tr. at
`
`598:1-16 (testimony by Mr. Guy Larri of ARM) (June 24, 2015); see also id., EDIS Doc. ID
`
`568758, Init. Det. at 130 (Oct. 9, 2015) (“Mr. Larri consistently explained that the statements relied
`
`upon by Nvidia describe only the theoretical flexibility of the GPU hardware by itself, and do not
`
`address how ARM driver software configures that hardware to actually operate within mobile
`
`devices. (See e.g., Tr. at 629:3-1 1; 636:9-637:7, 639114-25; 68 1:10-23.) Thus, NVIDIA’s
`
`references to ARM documents that do not describe how Samsung products are configured by the
`
`ARM driver software provide no basis to understand actual operation of these accused products.”).
`
`Fundamental fairness requires that AMD have the opportunity to rapidly search the source
`
`code on a computer at depositions and the trial to allow for meaningful cross-examination
`
`following “rebuttal” testimony from fact and expert witnesses. Absent access to a searchable
`
`computer, cross-examination will be artificially and unjustifiably hobbled.
`
`5
`
`

`

`Case 2:22-cv-00134-JRG-RSP Document 64 Filed 09/08/22 Page 6 of 9 PageID #: 946
`
`
`
`In short, the bar that Realtek proposes on having a source code computer available at
`
`depositions and the trial represents a significant departure from its practice in other cases without
`
`justification. The purpose of source code protections is to address genuine, demonstrated security
`
`problems, not to provide one side with tactical advantages.
`
`Realtek’s proposed bar on searchable source code computer access at depositions and the
`
`trial should therefore be denied, and AMD’s proposed provision should be granted.
`
`II.
`
`Defendant’s Position:
`a.
`
`Scope of Prosecution Bar in Paragraph 11 and Paragraph
`28(B)(xviii)
`
` Paragraph 11: AMD’s attempt to narrow the scope of the prosecution bar far beyond
`
`the scope of the model order renders the bar almost meaningless. Unless the prosecuting attorney
`
`were to adopt the exact information in the document at issue, that person could still write and
`
`prosecute patent claims that were directed to the same invention by changing minor details.
`
`Paragraph 28(B)(xviii) (in AMD’s proposed PO only): Just like the model order, this
`
`provision does not exist in Realtek’s proposed Protective Order. AMD’s attempt to add a second
`
`prosecution bar is duplicative and unnecessary. The prosecution bar that mirrors the model order
`
`in paragraph 11 is adequate and already addresses persons with access to source code.
`
`b.
`
`Source Code Computer Present at Depositions and Trial
`
` Paragraph 28(B)(x)4 (in AMD’s proposed PO only): Just like the model order, this
`
`provision does not exist in Realtek’s proposed Protective Order. In the co-pending ITC
`
`investigation, Realtek has already produced more than 50 million lines of source code. Plaintiffs
`
`propose requiring Realtek to make a source code computer available at any deposition, hearing,
`
`and at trial, setting up a scenario where they can ambush Realtek’ witnesses with questions about
`
`the massive volume of source code Realtek have produced. It is unreasonable to expect any
`
`6
`
`

`

`Case 2:22-cv-00134-JRG-RSP Document 64 Filed 09/08/22 Page 7 of 9 PageID #: 947
`
`
`
`witness to be able to navigate and respond to questions regarding the entirety of the source code
`
`loaded onto the review computer; this would be no different than loading the entirety of a party’s
`
`document production onto a computer and asking the witness to navigate that collection of
`
`documents and respond to questions on any of them. Moreover, the source code produced for
`
`inspection on the source code computers may not be organized in the same manner that it is in the
`
`repository Realtek’ witnesses use for their ordinary course of work. Thus, Plaintiffs’ provision is
`
`likely to create (indeed, it may be intended to create) the situation where Plaintiffs may claim that
`
`Realtek’ corporate designee or witness was not adequately prepared to provide the corporation’s
`
`knowledge, because the witness could not answer all of counsel’s questions regarding the source
`
`code. The requirement of a source code computer at any deposition, hearing, or at trial is not
`
`required under this Court’s model Protective Order, and should not be required here, irrespective
`
`of the different procedures that might be implemented at the ITC. Plaintiffs can print up to “the
`
`lesser of either 50 continuous pages, or ten (10) percent or more of the supplier’s source code for
`
`any given software or hardware description release.” This amount of code is more than sufficient
`
`to use to question deposition or trial witnesses. Plaintiffs and their experts can and should review
`
`Realtek’ source code on the review computers and then submit print requests for the portions about
`
`which they wish to question witnesses.
`
`Dated: September 8, 2022
`
`By: /s/ Eric H. Findlay
`Eric H. Findlay
`State Bar No. 00789886
`Brian Craft
`State Bar No. 04972020
`FINDLAY CRAFT, P.C.
`102 N. College Ave. Suite 900
`Tyler, Texas 75702
`Tel: (903) 534-1100
`Fax: (903) 534-1137
`
`Respectfully submitted,
`
`By: /s/ J. Mark Mann
`J. Mark Mann
`State Bar No. 12926150
`G. Blake Thompson
`State Bar No. 24042033
`MANN | TINDEL | THOMPSON
`201 E. Howard Street
`Henderson, Texas 75654
`Tel: (903) 657-8540
`Fax: (903) 657-6003
`
`7
`
`

`

`Case 2:22-cv-00134-JRG-RSP Document 64 Filed 09/08/22 Page 8 of 9 PageID #: 948
`
`Email: Mark@TheMannFirm.com
`Email: Blake@TheMannFirm.com
`
`Attorneys for Defendant Realtek
`Semiconductor Corp.
`
`
`
`
`
`Email: efindlay@findlaycraft.com
`Email: bcraft@findlaycraft.com
`
`Michael T. Renaud
`James M. Wodarski
`Michael J. McNamara
`Adam S. Rizk
`Samuel F. Davenport
`William A. Meunier
`Marguerite McConihe
`Matthew A. Karambelas
`Catherin Xu
`Nana Liu
`Tianyi Tan
`MINTZ LEVIN COHN FERRIS
` GLOVSKY AND POPEO PC
`One Financial Center
`Boston, MA 02111
`617-542-6000
`
`Jonathan J. Engler
`MINTZ LEVIN COHN FERRIS
` GLOVSKY AND POPEO PC
`555 12th Street NW, Suite 1100
`Washington, DC 20004
`202-434-7446
`
`Attorneys for Plaintiffs ATI Technologies ULC
`and Advanced Micro Devices, Inc.
`
`CERTIFICATE OF CONFERENCE
`
`The parties have conferred pursuant to Local Rule CV-7(h) and agree to the entry of the
`
`partially disputed Protective Order, subject to the Court’s approval.
`
`/s/ Eric H. Findlay
`Eric H. Findlay
`
`
`
`
`
`
`
`
`
`8
`
`

`

`Case 2:22-cv-00134-JRG-RSP Document 64 Filed 09/08/22 Page 9 of 9 PageID #: 949
`
`
`
`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that a true and correct copy of the foregoing document
`
`has been served on September 8, 2022 to all counsel of record who are deemed to have consented
`
`to electronic service via the Court’s CM/ECF system.
`
`/s/ Eric H. Findlay
`Eric H. Findlay
`
`
`
`
`
`
`
`
`9
`
`