IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

WACO DIVISION

WSOU INVESTMENTS, LLC d/b/a BRAZOS 

LICENSING AND DEVELOPMENT,

Plaintiff,

v.

DELL TECHNOLOGIES INC., DELL INC., 

AND EMC CORPORATION, 

Defendants.

Case No. 6:20-cv-00473-ADA

Case No. 6:20-cv-00475-ADA

Case No. 6:20-cv-00476-ADA

Case No. 6:20-cv-00477-ADA

Case No. 6:20-cv-00482-ADA

JURY TRIAL DEMANDED

WSOU INVESTMENTS, LLC d/b/a BRAZOS 

LICENSING AND DEVELOPMENT,

Plaintiff,

v.

DELL TECHNOLOGIES INC., DELL INC., 

EMC CORPORATION, AND VMWARE, INC.

Defendants.

Case No. 6:20-cv-00480-ADA

Case No. 6:20-cv-00481-ADA

Case No. 6:20-cv-00485-ADA

Case No. 6:20-cv-00486-ADA

JURY TRIAL DEMANDED

DEFENDANTS’ OPPOSITION TO NON-PARTY MOTION FOR 

LIMITED-PURPOSE CONSOLIDATION AND PROTECTIVE ORDER

Case 6:20-cv-00473-ADA Document 149 Filed 01/28/22 Page 1 of 15
TABLE OF CONTENTS

Page

i

I. INTRODUCTION .............................................................................................................. 1

II. BACKGROUND ................................................................................................................ 2

III. MOVANTS OFFER NO LEGAL OR FACTUAL BASIS FOR 

CONSOLIDATION............................................................................................................ 4

IV. CONCLUSION................................................................................................................... 8

Case 6:20-cv-00473-ADA Document 149 Filed 01/28/22 Page 2 of 15
TABLE OF AUTHORITIES

Page(s)

ii

CASES

Certified/LVI Env't Servs., Inc. v. PI Const. Corp.,

C.A. No. SA01-1036-FBNN, 2003 WL 1798542 (W.D. Tex. Mar. 3, 2003) ...........................5

Genus Lifesciences v. Lannett Co.,

2019 WL 7313047 (N.D. Cal. Dec. 30, 2019)...........................................................................7

Kajeet, Inc. v. Qustodio, LLC,

No. SACV181519JAKPLAX, 2019 WL 8060078 (C.D. Cal. Oct. 22, 2019) ..........................6

Kilmon v. Saulsbury Indus., Inc.,

No. MO:17-CV-99, 2018 WL 5800759 (W.D. Tex. Feb. 13, 2018).........................................3

Mills v. Beech Aircraft Corp.,

886 F.2d 758 (5th Cir. 1989) .....................................................................................................5

In re Modern Plastics Corp.,

890 F.3d 244 (6th Cir. 2018) .....................................................................................................7

PB & J Software, LLC v. Acronis, Inc.,

C.A. No. 4:12-690-SNLJ, 2012 WL 4815132 (E.D. Mo. Oct. 10, 2012)..................................5

Reeves v. Wells Fargo Bank,

C.A. No. 14-00187-DCG, 2015 WL 11598708 (W.D. Tex. Mar. 23, 2015).............................4

Tiberi v. CIGNA Ins. Co.,

40 F.3d 110 (5th Cir. 1994) .......................................................................................................7

Wiwa v. Royal Dutch Petroleum Co.,

392 F.3d 812 (5th Cir. 2004) .................................................................................................6, 7

Case 6:20-cv-00473-ADA Document 149 Filed 01/28/22 Page 3 of 15
TABLE OF ABBREVIATIONS

iii

Abbreviation Term

Aqua Aqua Licensing, LLC

BasePoint BasePoint Administrative, LLC

BP BP Funding Trust

Br. Motion For Limited-Purpose Consolidation And Protective Order 

Filed By Non-Party Subpoena Recipients BP Funding Trust; 

Basepoint Administrative, LLC; Terrier SSC, LLC; And Aqua 

Licensing, LLC; And Joined By Plaintiff WSOU, filed in 6:20-cv00473 on January 21, 2022 at D.I. 146.

Dell Dell Technologies Inc., Dell Inc., EMC Corporation, and VMware, 

Inc.

Movants BP Funding Trust; BasePoint Administrative, LLC; Terrier SSC, 

LLC; Aqua Licensing, LLC; WSOU Investments, LLC d/b/a 

Brazos Licensing and Development

Terrier Terrier SSC, LLC

WSOU WSOU Investments, LLC d/b/a Brazos Licensing and 

Development

Case 6:20-cv-00473-ADA Document 149 Filed 01/28/22 Page 4 of 15
1

I. INTRODUCTION

Dell opposes Movants’ motion to consolidate discovery, which is an unprecedented 

remedy in search of a problem. 

As an initial matter, BasePoint, Aqua, and Terrier are unrelated parties whose only apparent 

relationship is that they are represented by common counsel, who submitted a consolidated brief 

on behalf of the three disparate entities. As acknowledged in Appendix A to Movants’ brief, not 

all of the four groups of unrelated defendants in the various WSOU cases served subpoenas on all 

three entities. Specifically, in seeking consolidation, Aqua is facing four subpoenas, BasePoint 

three subpoenas, and Terrier two subpoenas. This is far from a burden on any of these entities; 

indeed, Movants’ counsel has not articulated any. Instead, Movants seeks to turn the issue on its 

head in an attempt to force each defendant to justify why the discovery sought by its respective, 

unique subpoena should not simply be consolidated with that of other unrelated defendants. 

Tellingly, Movants provide no support for such burden shifting in connection with their 

unprecedented consolidation request.

As to Dell’s subpoenas, Dell served subpoenas only on BasePoint and Aqua. Dell has not 

served a subpoena on the third entity, Terrier, which is also seeking consolidation.

As to BasePoint, Dell already agreed—subject to the Court’s approval—to join in Google’s 

pending motion to compel BasePoint to respond to subpoenas, including that from Dell, to which 

BasePoint did not timely object and originally agreed to provide documents and information. No 

further consolidation is necessary or appropriate. 

As to Aqua, Dell is appropriately waiting for Aqua to complete its promised document 

production before determining whether there are any disputes to raise or depositions that need to 

be scheduled. While Dell seeks discovery from Aqua that is unique to the patents asserted by 

WSOU against Dell, Dell has nonetheless offered to coordinate depositions or disputes with other 

Case 6:20-cv-00473-ADA Document 149 Filed 01/28/22 Page 5 of 15
2

cases in the future where practicable. Aqua appears primarily interested in avoiding the 

consequence of having participated in WSOU’s pre-suit effort to monetize such a large portfolio 

of patents against such a diverse group of defendants—a consequence exacerbated by WSOU’s ad 

seriatim filing of the cases at issue in this motion and its own refusal to provide related discovery. 

That Aqua may be subject to discovery requests of different scope at different times due to the 

different stages and needs of the particular cases is no surprise.

Dell respectfully requests that this Court deny the motion to consolidate and allow the 

parties to proceed with what is nothing more than routine discovery that can be civilly coordinated 

by counsel.

II. BACKGROUND

On August 20, 2021, Dell served subpoenas on BasePoint and Aqua.1

 

BasePoint Subpoena. Dell has requested from BasePoint, a party that participated in 

financing WSOU’s acquisition of the asserted patents, documents and testimony that relate both 

to the valuation of the asserted patents and WSOU’s standing to file the above-captioned cases. 

(See 6:20-cv-00473, D.I. 146-1 at 317–92.) After the time to respond to Dell’s subpoena had 

expired,2 and without interposing any objections, BasePoint’s counsel responded on October 8, 

2021, offering to produce a defined set of documents (id. at 593–94). Dell accepted. Id. at 593. 

1 Dell disputes Movants’ arguments concerning the substantive merits of these subpoenas, which 

are irrelevant to the present motion. Dell notes, however, that Dell is not party to the Microsoft

cases and thus has no knowledge regarding the sealed proceedings that Movants repeatedly tout 

(e.g., at 7–8, 18–19) as critical to their position in resisting Dell’s subpoenas.

2

 There is no dispute that BasePoint did not timely object. (Cf. Br. at 7 (“timeliness . . . is apparently 

in dispute”).) Dell served its subpoenas on August 20, 2021 and commanded a response to its 

document requests by September 10, 2021. (See 6:20-cv-00473, D.I. 146-1 at 317). BasePoint 

did not respond until October 1, 2021 (id. at 594–95), and by its own admission did not object until 

November 11, 2021 (id. at 591; Br. at 7). See Fed. R. Civ. Pro. 45(d)(2)(B) (requiring objections 

within 14 days of service)

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On November 11, 2021, however, BasePoint’s counsel retracted its offer, representing that

BasePoint would be violating an agreement to provide documents in view of otherwise 

undescribed activities in the Microsoft and Google cases—to which Dell is not privy. (Id. at 597–

99.)

While Dell has not moved to compel discovery from BasePoint, Dell offered to join in 

Google’s pending motion to compel (in 6:21-mc-1270 (W.D. Tex.)) to efficiently resolve any 

dispute regarding BasePoint’s unilateral and belated revocation of its agreement to respond to 

Dell’s subpoena. BasePoint’s counsel has separately indicated that it intends to propose to the 

Court that Dell submit supplemental briefing and attend any hearing scheduled on that matter.

Aqua Subpoena. Dell has requested from Aqua, one of WSOU’s patent brokers,

documents and testimony relating to the value of WSOU’s patent portfolio that Aqua was 

apparently hired to acquire and sell. (See 6:20-cv-00473, D.I. 146-1 at 225–316.) Movants 

incorrectly suggest that the scope of each party’s subpoena is substantially identical, as Dell has 

made several unique requests. E.g., 6:20-cv-00473, D.I. 146-1 at 240, Request Nos. 14, 15, and 

17 (seeking revenue, marketing plans, and business policies for the patent portfolio); id. at 238-39, 

Request Nos. 2, 10, 11 (seeking decision to pursue or not pursue other litigation for any of the 

asserted patents and any prior art searches conducted by Aqua). Dell requested similar documents 

from WSOU, which has failed to produce such documents or confirm whether it is withholding 

them. 

Aqua served only generic general objections to Dell’s subpoenas, which are themselves 

insufficient. See, e.g., Kilmon v. Saulsbury Indus., Inc., No. MO:17-CV-99, 2018 WL 5800759, 

at *4 (W.D. Tex. Feb. 13, 2018) (“Such general and conclusory objections fail to establish good 

Case 6:20-cv-00473-ADA Document 149 Filed 01/28/22 Page 7 of 15
4

cause and a specific need for protection exists, as is required to obtain a protective order from such 

discovery.”). Aqua subsequently attempted to belatedly supplement with specific objections. 

 Aqua produced a handful of documents in response to Dell’s subpoenas. Prior to Movants’

present effort to confer regarding this motion, Dell had been awaiting a response to its request 

from early December as to the status of Aqua’s documents productions. 

Aqua has now informed Dell that it intends to finalize its document production by February 

4, 2022, though it has not specified what documents it will be producing or withholding. Dell has 

been awaiting that production. Dell has not yet conferred with Aqua concerning any discovery 

deficiencies and has not filed a motion to compel. Discovery in the Dell cases is set to close on 

May 6, 2022. Before spending the Court’s or the parties’ time and resources on a motion, Dell is 

awaiting Aqua’s document productions to determine how to proceed. To the extent there are 

deficiencies, Dell would expect Aqua to engage in a meet and confer process in an effort to narrow 

the issues and address such deficiencies. At the very least, Dell has no desire to file a premature 

motion to compel that would be struck down by the court. See Reeves v. Wells Fargo Bank, C.A. 

No. 14-00187-DCG, 2015 WL 11598708, at 1 (W.D. Tex. Mar. 23, 2015) (declaring Plaintiff’s 

motion to compel, filed on March 10, 2015, as premature because Defendant had until March 11, 

2015 to respond.). 

III. MOVANTS OFFER NO LEGAL OR FACTUAL BASIS FOR CONSOLIDATION

Movants do not offer a single authority that supports their request for consolidation under 

the circumstances here, where third parties seek to enforce consolidation of different cases with 

unrelated defendants, different patents, unique facts, and distinct discovery schedules—without 

even the existence of any duplicative disputes. Instead, Movants generically cite to three Rules, 

none of which support their position.

Case 6:20-cv-00473-ADA Document 149 Filed 01/28/22 Page 8 of 15
5

For instance, Movants refer to Rule 26(c) but provide no explanation as to why it requires 

consolidation as Movants demand. (Br. at 20.) Indeed, Rule 26(c) pertains to protective orders, 

and thus has no application to Movants’ consolidation request here. 

Movants further argue that Rule 42(a) compels consolidation of discovery in all of these 

cases to avoid unnecessary cost or delay. (Br. at 19–20.) Yet Movants identify no case in which 

a court has permitted such consolidation of disparate cases such as those at issue here, much less 

at the request of a third party that has caused the delays by refusing to cooperate throughout 

discovery. Indeed, where a court has granted consolidation of discovery, it was because, among 

other factors, there was a common issue of law or fact and “there is no risk of prejudice or possible 

confusion if the cases are consolidated, or if there is any risk, it is outweighed by the risk of 

inconsistent adjudications of factual and legal issues if the cases are tried separately[.]” 

Certified/LVI Env't Servs., Inc. v. PI Const. Corp., C.A. No. SA01-1036-FBNN, 2003 WL 

1798542, at 2 (W.D. Tex. Mar. 3, 2003). Even then, courts have denied consolidating discovery 

where the same patent was involved but each party faced different infringement allegations and 

each party’s case therefore involved different facts. See PB & J Software, LLC v. Acronis, Inc., 

C.A. No. 4:12-690-SNLJ, 2012 WL 4815132, at 2 (E.D. Mo. Oct. 10, 2012). 

The subpoenas at issue seek information relevant to patent standing and damages, and each 

case has a different set of patents brought against each party. Movants have made no showing that 

any overlapping facts justify consolidation. Discovery would not be identical for all of the parties, 

creating a high risk of prejudice and confusion that is not outweighed by the risk of inconsistent 

adjudication. The various cases that WSOU has maintained against the several unrelated 

defendants, which involve distinct technology, different accused products, and no overlap in 

asserted patents, are also at different stages of discovery. Cf. Mills v. Beech Aircraft Corp., 886 

Case 6:20-cv-00473-ADA Document 149 Filed 01/28/22 Page 9 of 15
6

F.2d 758, 762 (5th Cir. 1989) (“Consolidation may properly be denied in instances where the cases 

are at different stages of preparedness for trial.”). Thus, for example, requiring all of the 

defendants to address the patents and issues unique to their respective cases in a single, 7-hour 

deposition of a Movant unfairly constrains the defendants from obtaining discoverable information. 

Instead of streamlining the process, consolidation will leave Dell without the full ability to seek, 

obtain, and control the sequence of discovery necessary to its respective cases.

Furthermore, Movants improperly rely on Rule 45(d), which simply provides that a 

subpoena may be quashed or modified to “avoid placing an undue burden or expense on a person 

subject to the subpoena.” (Br. at 17–18.) Rule 45(d) therefore is irrelevant here, because Movants 

are not moving to quash Dell’s subpoenas. In any event, courts have explained that “undue burden” 

in this context includes consideration of various factors, including relevance, the party’s need for 

the documents, the breadth of the request, the time period covered by the request, the particularity 

with which the documents are described, the burden imposed, and the recipient’s status as a nonparty. See Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812, 818 (5th Cir. 2004). Movants fail 

to address any of these factors, much less establish that they have suffered any “undue burden.” 

To the contrary, Movants appear to be strategically aligned and, consistent with Movants’ business 

model of licensing patent portfolios, Movants have benefitted from WSOU’s efforts to monetize 

the patents asserted against Dell. The documents that Dell seeks through the subpoenas are critical 

to understanding the value of the patent portfolio in relation to the damages sought by Plaintiff

WSOU, including WSOU’s own valuations of the asserted patents. E.g., Kajeet, Inc. v. Qustodio, 

LLC, No. SACV181519JAKPLAX, 2019 WL 8060078, at *6 (C.D. Cal. Oct. 22, 2019) (granting 

discovery of communications that might contain party admissions regarding the valuation of the 

Case 6:20-cv-00473-ADA Document 149 Filed 01/28/22 Page 10 of 15
7

asserted patents as relevant to damages). Consolidation therefore would restrict Dell’s ability to 

seek that discovery to which it is entitled.

In connection with their flawed reliance on Rule 45(d), Movants refer to Genus 

Lifesciences v. Lannett Co., 2019 WL 7313047 (N.D. Cal. Dec. 30, 2019), to argue that non-parties 

cannot be forced to bear an undue burden. But in Genus Lifesciences, as Movants note (Br. at 18), 

the subpoena there was quashed because “plaintiff failed to first seek information from the 

defendant.” Here, Movants are not moving to quash. Further, Dell has propounded discovery and

requested production from WSOU multiple times regarding material relevant to the value of the 

patents. WSOU has declined or failed to produce such material, including for example the loan 

agreement with BasePoint, which includes information about the patent portfolio that WSOU 

offered up as collateral. It is only after Dell requested and failed to receive production from WSOU 

that Dell resorted to subpoenas. 

Movants have asked the Court to take an unprecedented step and consolidate subpoenas 

under Rule 45. Even if there were an undue burden on the Movants, which there is not, the 

appropriate remedy would not be a consolidation of depositions but instead a remedy expressly set 

forth in Rule 45.

3

 See Wiwa v. Royal Dutch Petroleum Co., 392 F.3d at 817-18. But no such 

remedies are justified here where the parties are still cooperatively participating in discovery. Cf.

Tiberi v. CIGNA Ins. Co., 40 F.3d 110, 112 (5th Cir. 1994) (overturning sanction award against 

party who moved to compel response to Rule 45 subpoena where movant engaged in “good faith 

efforts to negotiate reasonable parameters on the subpoena”).

3 Where a court believes that undue burden has been placed on a non-party under Rule 45(d), the 

appropriate remedies are sanctions, cost-shifting, or quashing the subpoena. See In re Modern 

Plastics Corp., 890 F.3d 244, 250 (6th Cir. 2018); see also Fed. R. Civ. Pro. 45(d)(3).

Case 6:20-cv-00473-ADA Document 149 Filed 01/28/22 Page 11 of 15
8

Dell has engaged in good faith with all parties and has attempted to request production of 

documents without immediately resorting to a non-party subpoena. However, the discovery 

process has stalled without crucial pieces of evidence from Plaintiff WSOU. Dell has also 

compromised and consolidated where it has been able to do so, as it did in offering to join Google’s 

motion to compel production from BasePoint. Consolidating depositions and discovery is 

premature and unnecessary, and will only make it more difficult for each party and the Court to 

determine the facts relevant to each individual case.

* * *

Dell would be willing to coordinate on Aqua’s deposition on February 22, 2022, contingent 

on the document production that Aqua will attempt to finish by February 4, 2022. Even after 

production, however, Dell would need time to assess whether the documents are responsive and 

whether Aqua withheld any responsive documents. If Aqua further withholds relevant documents, 

Dell will need to meet and confer with Aqua and, if necessary, move to compel production. In 

that circumstance, a joint deposition on February 22 would be unrealistic. 

If Dell later seeks discovery that Movants consider to be unnecessarily duplicative, or seek 

to relitigate a matter already decided in another, publicly available dispute, Movants can seek a 

protective order or raise the issue at that time.

IV. CONCLUSION

For the reasons discussed above, Dell respectfully requests that Movants’ motion be denied.

Case 6:20-cv-00473-ADA Document 149 Filed 01/28/22 Page 12 of 15
9

Dated: January 28, 2022

By: /s/ Barry Shelton

Barry K. Shelton

Texas State Bar No. 24055029

bshelton@winston.com

WINSTON & STRAWN LLP

2121 N. Pearl Street

Suite 900

Dallas, TX 75201

Phone: +1 214-453-6500

Fax: +1 214-453-6400

Benjamin Hershkowitz

bhershkowitz@gibsondunn.com

Brian A. Rosenthal

brosenthal@gibsondunn.com 

Allen Kathir

akathir@gibsondunn.com

GIBSON, DUNN & CRUTCHER LLP

200 Park Ave.

New York, NY 10166-0193 

Telephone: 212.351.4000

Facsimile: 212.351.4035 

Y. Ernest Hsin

ehsin@gibsondunn.com

Jaysen S. Chung

jschung@gibsondunn.com

GIBSON, DUNN & CRUTCHER LLP

555 Mission St., Ste. 3000

San Francisco, CA 94105-0921

Telephone: 415.393.8200

Facsimile: 415.393.8306

Ryan K. Iwahashi

riwahashi@gibsondunn.com

GIBSON, DUNN & CRUTCHER LLP

1881 Page Mill Rd.

Palo Alto, CA 94304-1211

Telephone: 650.849.5300

Facsimile: 650.849.5333

Andrew P. Blythe

ablythe@gibsondunn.com

Case 6:20-cv-00473-ADA Document 149 Filed 01/28/22 Page 13 of 15
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GIBSON, DUNN & CRUTCHER LLP

3161 Michelson Drive

Irvine, CA 92612-4412

Telephone: 949.451.3800

Facsimile: 949.451.4220

Attorneys for Defendants

Case 6:20-cv-00473-ADA Document 149 Filed 01/28/22 Page 14 of 15
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CERTIFICATE OF SERVICE

The undersigned certifies that on January 28, 2022, all counsel of record who are deemed 

to have consented to electronic service are being served with a copy of this document through the 

Court’s CM/ECF system under Local Rule CV-5(a). 

/s/ Barry K. Shelton

Barry K. Shelton 

Case 6:20-cv-00473-ADA Document 149 Filed 01/28/22 Page 15 of 15