G+ Communications, LLC v. Samsung Electronics Co. LTD., et al, No. 2:2022cv00078 - Document 283 (E.D. Tex. 2023)
Court Description: MEMORANDUM OPINION AND ORDER re 184 Opposed SEALED MOTION TO EXCLUDE DOCUMENTS PRODUCED AFTER FACT DISCOVER filed by G+ Communications, LLC.. Signed by District Judge Rodney Gilstrap on 8/29/2023. (nkl, )
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G+ Communications, LLC v. Samsung Electronics Co. LTD., et al Doc. 283 Case 2:22-cv-00078-JRG Document 283 Filed 08/30/23 Page 1 of 4 PageID #: 22969 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION G+ COMMUNICATIONS, LLC, Plaintiff, v. SAMSUNG ELECTRONICS CO. LTD., and SAMSUNG ELECTRONICS AMERICA, INC., Defendants. § § § § § § § § § § § CIVIL ACTION NO. 2:22-CV-00078-JRG MEMORANDUM OPINION AND ORDER I. INTRODUCTION Before the Court is Plaintiff G+ Communications, LLC’s [“G+”] Motion to Exclude Documents Produced After Fact Discovery (the “Motion”). (Dkt. No. 184.) In the Motion, G+ moves to exclude late-produced documents under Federal Rule of Civil Procedure 37. (Id. at 2–3.) Defendants Samsung Electronics Co., Ltd. and Samsung Electronics America, Inc. (collectively “Samsung”) oppose the Motion. (Dkt. No. 225.) For the following reasons, the Court finds that the Motion should be DENIED. II. BACKGROUND All four patents-in-suit were developed by ZTE Corporation (“ZTE”), the original assignee of the patents. (Dkt. No. 225 at 1.) ZTE later sold the patents to G+. (Id.) In the patent purchase agreement (“PPA”) itself ZTE informed G+ that Apple Inc. (“Apple”) had a license to the patentsin-suit. (Id. at 1–2.) On the day fact discovery opened, August 10, 2022, Samsung sent a letter to G+ requesting “[a]ll documents related to [G+]’s acquisition of the Asserted Patents from ZTE Corporation,” Dockets.Justia.com Case 2:22-cv-00078-JRG Document 283 Filed 08/30/23 Page 2 of 4 PageID #: 22970 “[a]ll documents relating to any contracts or other agreements between [G+], ZTE, the inventors of the Asserted Patents, and/or any prior assignee of the Asserted Patents,” and “[a]ll documents relating to any contracts or other agreements between [G+] and any past or present licensee of the Asserted Patents.” (Id. at 2.) Despite consistent follow up from Samsung, G+ did not produce a version of the PPA until February 27, 2023, and even then, the portion of the PPA explaining that Apple had a license to the patents-in-suit was redacted. (Id. at 2–3.) G+ finally produced the full, unredacted version of the PPA on April 3, 2023. (Id. at 3.) Samsung then served a subpoena on Apple approximately six-weeks later, on May 22, 2023 seeking the Apple-ZTE license. (Dkt. No. 184 at 1.) Samsung did not receive the full, unredacted ZTE-Apple license from Apple until July 7, 2023. (Dkt. No. 225 at 3.) Samsung produced the ZTE-Apple license to G+ on July 10, 2023. (Dkt. No. 184 at 1.) Fact discovery had closed on June 28, 2023. (Id.) III. LEGAL STANDARD “If a party fails to provide information . . . as required by Rule 26(a) or (e), the party is not allowed to use that information . . . to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). Courts apply a fourfactor test to determine whether to find a violation substantially justified or harmless: (1) “the justification for why the disclosure should be considered timely”; (2) “the prejudice to the party opposing the introduction of the evidence”; (3) “the importance of the evidence”; and (4) “the possibility of curing such prejudice by granting a continuance.” Primrose Operating Co. v. National American Ins. Co., 382 F.3d 546, 564 (5th Cir. 2004). 2 Case 2:22-cv-00078-JRG Document 283 Filed 08/30/23 Page 3 of 4 PageID #: 22971 IV. ANALYSIS G+ argues that there is no good reason why Apple was late in producing the ZTE-Apple license after the close of fact discovery, and that Samsung has not offered one. (Dkt. No. 184 at 3.) Further, G+ argues, Samsung is to blame for the delay because it waited a month-and-a-half to subpoena Apple. (Id.) G+ argues that allowing use of the evidence would prejudice it because it has not had its own opportunity to explore the facts behind the ZTE-Apple license. (Id. at 3–4.) More specifically, G+ contends that the ZTE-Apple license is a cross license, and G+ needs to take discovery of the facts behind the license in order to properly valuate it. (Id.) G+ then argues that there is prejudice because Samsung is newly asserting that G+ breached its FRAND commitments and intends to use the ZTE-Apple license as evidence for that purpose. (Id. at 4.) G+ contends that the Apple-ZTE license is not so important as to override the other factors. (Id. at 5.) Finally, G+ contends that a continuance would not cure the prejudice because trial is imminent. (Id.) In response, Samsung argues that it was G+, not Samsung or Apple, who is largely responsible for the late production of the ZTE-Apple license. (Dkt. No. 225 at 4.) It was G+ who delayed in producing the PPA for 8 months, the document that led to the ZTE-Apple license. (Id. at 4–5.) Samsung then contends that there is no prejudice to G+ because both parties’ experts have had a full and fair opportunity to address the ZTE-Apple license, and did address it. (Id. at 5.) Moreover, Samsung argues, it is disingenuous for G+ to suggest that Apple’s late production of the ZTE-Apple license is Samsung’s fault, when G+ knew about it the whole time. (Id.) Samsung also urges that it has not raised any new theory on breach of FRAND. (Id. at 5–6.) Samsung argues that the ZTE-Apple license is important and unique because it is the only license to the asserted patents in this case. (Id. at 6.) Finally, Samsung argues that no continuance is necessary because G+’s experts have addressed the ZTE-Apple license. (Id. at 7.) 3 Case 2:22-cv-00078-JRG Document 283 Filed 08/30/23 Page 4 of 4 PageID #: 22972 The Court is not persuaded by G+’s arguments. First, the Court finds that the ZTE-Apple license is relevant because it is the only license to the asserted patents. Second, the Court finds that there is limited prejudice to G+ seeing that its own experts have addressed the ZTE-Apple license in their reports. Moreover, to the extent that there is any prejudice to G+ from its inability to investigate the facts underlying the ZTE-Apple license, that prejudice is largely of G+’s own making. G+ was aware of the ZTE-Apple license from the moment it purchased the patents from ZTE, seeing that the PPA itself told G+ that the patents were subject to a license with Apple. Nonetheless, G+ did not serve any discovery on Apple. Additionally, as regards G+’s arguments that Samsung is using the ZTE-Apple license to propound a new breach of FRAND theory, what Samsung might do with evidence is not reason to exclude it at the outset. Third, the Court, on . balance, largely credits Samsung’s justification for the late-production of the ZTE-Apple license— G+’s delay in producing the PPA. 1 Finally, the Court finds that no continuance is necessary, and G+ does not describe what a continuance would accomplish, if one were granted. V. CONCLUSION For the foregoing reasons, the Court finds that G+’s Motion to Exclude the Apple-ZTE license (Dkt. No. 184) should be and hereby is DENIED. So ORDERED and SIGNED this 29th day of August, 2023. ____________________________________ RODNEY GILSTRAP UNITED STATES DISTRICT JUDGE Though the 6-week delay by Samsung in subpoenaing the license from Apples shows that Samsung itself does not have completely clean hands. They are just “less unclean” than G+’s considering its 8-month delay in producing the PPA. 1 4
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