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IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF TEXAS 

WACO DIVISION

Case Numbers:

6:20-cv-00473-ADA

6:20-cv-00475-ADA

6:20-cv-00476-ADA

6:20-cv-00477-ADA

6:20-cv-00480-ADA

6:20-cv-00481-ADA

6:20-cv-00482-ADA

6:20-cv-00485-ADA

6:20-cv-00486-ADA

Case Numbers:

6:20-cv-00487-ADA

6:20-cv-00488-ADA

6:20-cv-00489-ADA

6:20-cv-00490-ADA

6:20-cv-00491-ADA

6:20-cv-00492-ADA

6:20-cv-00493-ADA

6:20-cv-00494-ADA

6:20-cv-00495-ADA

6:20-cv-00496-ADA

6:20-cv-00497-ADA

Case Numbers:

6:20-cv-00572-ADA

6:20-cv-00579-ADA

6:20-cv-00580-ADA

6:20-cv-00584-ADA

6:20-cv-00585-ADA

WSOU INVESTMENTS, LLC D/B/A

BRAZOS LICENSING AND DEVELOPMENT,

Plaintiff,

V.

DELL TECHNOLOGIES INC., DELL INC., 

EMC CORPORATION, AND VMWARE, INC.,

Defendants.

WSOU INVESTMENTS, LLC D/B/A

BRAZOS LICENSING AND DEVELOPMENT,

Plaintiff,

V.

ZTE CORPORATION,

Defendant.

WSOU INVESTMENTS, LLC D/B/A

BRAZOS LICENSING AND DEVELOPMENT,

Plaintiff,

V.

GOOGLE, LLC,

Defendant.

Case 6:20-cv-00489-ADA Document 172 Filed 03/04/22 Page 1 of 9
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Case Numbers:

6:20-cv-00725-ADA

6:20-cv-00726-ADA

6:20-cv-00728-ADA

6:20-cv-00730-ADA

6:20-cv-00783-ADA

Case Number:

6:21-cv-01269-ADA 

Case Number:

6:21-cv-01270-ADA 

Case Number:

6:21-cv-01309-ADA

WSOU INVESTMENTS, LLC D/B/A

BRAZOS LICENSING AND DEVELOPMENT,

Plaintiff,

V.

HEWLETT PACKARD ENTERPRISE 

COMPANY,

Defendant.

GOOGLE, LLC,

Petitioner,

V.

TERRIER SSC, LLC,

Respondent.

GOOGLE, LLC,

Petitioner,

V.

BP FUNDING TRUST,

Respondent.

GOOGLE, LLC,

Petitioner,

V.

AQUA LICENSING, LLC,

Respondent.

Case 6:20-cv-00489-ADA Document 172 Filed 03/04/22 Page 2 of 9
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ORDER GRANTING CONSOLIDATION FOR THE LIMITED PURPOSE OF 

NON-PARTY DISCOVERY

Came on for consideration non-party subpoena recipients BP Funding Trust, 

BasePoint Administrative, LLC, Terrier SSC, LLC, and Aqua Licensing, LLC (collectively, 

the “Requesting Non-Parties”) Motion for Limited-Purpose Consolidation and Protective 

Order (the “Motion to Consolidate”) in each of the above-captioned cases.1 The Court, having 

considered the Motion to Consolidate and held a hearing for same, GRANTS the requested 

relief as detailed below.

I. BACKGROUND

As indicated in the above case caption, this Court has several similar patent 

infringement matters pending before it as brought by Plaintiff WSOU Investments, LLC d/b/a 

Brazos Licensing and Development (“Plaintiff” or “WSOU”). Defendants in the abovecaptioned WSOU cases have sought discovery from some of the same non-parties, including 

by serving subpoenas for documents and testimony on the Requesting Non-Parties. In 

response, the Requesting Non-Parties have sought consolidation in an effort to require 

coordination among the defendants with respect to document requests, depositions, and 

discovery motions that have been brought or that defendants are contemplating bringing, 

pursuant to Rules 42 and 26(c) of the Federal Rules of Civil Procedure. Certain of the abovecaptioned defendants oppose such a request.

Dell Technologies Inc., Dell Inc., and EMC Corporation (collectively, “Dell”) oppose 

the Requesting Non-Parties’ Motion to Consolidate. ECF No. 149 at 1.

2 Dell argues that not 

1 The ECF filings for each of the above-captioned cases are noted below for each of the parties’ respective positions 

regarding the Motion to Consolidate.

2 The opposition was filed solely in Case No. 6:20-cv-00473-ADA. However, the opposition applied for all 

remaining WSOU v. Dell cases, including: 6:20-cv-00475-ADA; 6:20-cv-00476-ADA; 6:20-cv-00477-ADA; 6:20-

Case 6:20-cv-00489-ADA Document 172 Filed 03/04/22 Page 3 of 9
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every non-party is facing the same number of subpoenas from the above-captioned 

defendants. Dell offers that the parties can proceed with nothing more than routine discovery 

that can be civilly coordinated by counsel. Id. at 2.

ZTE Corporations, ZTE (USA) Inc., and ZTE (TX), Inc. (collectively, “ZTE”) also 

opposes the Motion to Consolidate. ECF No. 165 at 1.3 ZTE primarily argues that it has no 

motion to compel before this court that could be subject to consolidation. However, ZTE is 

seeking “discovery for damages issues” that involve the same plaintiff and third parties. Id.

Furthermore, the Requesting Non-Parties note that ZTE’s “insist[s] on potentially moving to 

compel on its subpoenas, which are identical to the subpoenas before the Court in the Google 

Motions.” Case No. 6:20-cv-473, ECF No. 153 at 18.

Google LLC (“Google”) is “agnostic about consolidation as long as its terms are fair 

to all parties.”4 Specifically, Google argues that the limited deposition time and proposed 

satisfaction of subpoenas skews the playing field in favor of the Requesting Non-Parties. 

Google’s primary concern is that should the Court grant consolidation pursuant to the 

Requesting Non-Parties’ proposed order, the Requesting Non-Parties could use it to tilt the 

playing field heavily in their favor.

Hewlett Packard Enterprise Company (“HPE”) responds that it supports the Motion 

to Consolidate based on the Requesting Non-Parties agreement to produce to HPE copies of 

cv-00480-ADA; 6:20-cv-00481-ADA; 6:20-cv-00482-ADA; 6:20-cv-00485-ADA; and 6:20-cv-00486-ADA. 3 The opposition was filed solely in Case No. 6:20-cv-00487-ADA. However, the opposition applied for all 

remaining WSOU v. ZTE cases, including: 6:20-cv-00488-ADA; 6:20-cv-00489-ADA; 6:20-cv-00490-ADA; 6:20-

cv-00491-ADA; 6:20-cv-00492-ADA; 6:20-cv-00493-ADA; 6:20-cv-00494-ADA; 6:20-cv-00495-ADA; 6:20-cv00496-ADA; and 6:20-cv-00497-ADA. 4 The same opposition response was filed in the following cases: 6:21-cv-1269 (ECF No. 36 at 2); 6:21-cv-1270 

(ECF No. 35 at 2); 6:21-cv-1309 (ECF No. 26). The same response and disposition will further apply to the 

following cases styled WSOU v. Google: 6:20-cv-00572-ADA; 6:20-cv-00579-ADA; 6:20-cv-00580-ADA; 6:20-cv00584-ADA; and 6:20-cv-00585-ADA.

Case 6:20-cv-00489-ADA Document 172 Filed 03/04/22 Page 4 of 9
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any document production the Requesting Non-Parties provide to Google and the transcript of 

any deposition taken by Google if the limited purpose consolidation is granted. ECF No. 90 

at 1.5 HPE also provides certain edits to the proposed order that the Requesting Non-Parties 

do not oppose.

WSOU also indicated its support during the oral hearing, stating that “we think 

practically these motions should be consolidated. They involve the same issues against the 

same third parties, involving the same plaintiff in the same subpoenas. I think they even 

included the exact same spelling mistakes that google had served on these third parties. So 

they really are the same thing.” Transcript of Oral Argument at 19, Oral Hearing February 

14, 2022 (rough).

The Requesting Non-Parties note that common subpoenas exist among the defendants, 

as illustrated by identical typos. Motion to Consolidate, at 7. Furthermore, the Requesting 

Non-Parties seek that discovery rulings in another set of cases styled WSOU v. Microsoft

should apply to the cases at hand. In short, the request is simple: force the defendants to 

cooperate with each other to coordinate discovery from the Requesting Non-Parties to avoid 

unduly burdening the Requesting Non-Parties.

II. LEGAL STANDARD

Rule 42(a) of the Federal Rules of Civil Procedure provides:

(a) Consolidation. If actions before the court involve a common 

question of law or fact, the court may:

(1) join for hearing or trial any or all matters at issue in 

the actions;

(2) consolidate the actions; or

(3) issue any other orders to avoid unnecessary cost or 

delay.

5 The response in support of the Motion to Consolidate was filed in Case No. 6:20-cv-725. The response in support 

applies for all remaining WSOU v. HPE cases, including: 6:20-cv-00726-ADA; 6:20-cv-00728-ADA; 6:20-cv00730-ADA; and 6:20-cv-00783-ADA.

Case 6:20-cv-00489-ADA Document 172 Filed 03/04/22 Page 5 of 9
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“The purpose of this rule ‘is to give the district court broad discretion to decide how 

cases on its docket are to be tried so that the business of the court may be dispatched with 

expedition and economy while providing justice to the parties.’” Gate Guard Servs. L.P. v. 

Solis, No. CIV.A. V-10-91, 2011 WL 2784447, at *14 (S.D. Tex. July 12, 2011) (citing 9A 

Wright & A. Miller, FED. PRAC. & PROC. § 2381 (3d ed.)). “Even if there are some questions 

that are not common, this does not preclude consolidation.” Id. (citing Batazzi v. Petroleum 

Helicopters, Inc., 664 F.2d 49, 50 (5th Cir.1981)). 

Rule 45 of the Federal Rules of Civil Procedure governs the issuance of subpoenas 

and provides certain protections to avoid undue burden or expense on a person subject to the 

subpoena. Specifically, “A party or attorney responsible for issuing and serving a subpoena 

must take reasonable steps to avoid imposing undue burden or expense on a person subject 

to the subpoena.” FED. R. CIV. P. 45(d)(1).

Last, courts are afforded the ability, for good cause, to issue protective orders to 

prevent undue burden or expense. FED. R. CIV. P. 26 (“The court may, for good cause, issue 

an order to protect a party or person from annoyance, embarrassment, oppression, or undue 

burden or expense, including one or more of the following...”).

III. CONSOLIDATION ORDER

As noted by the Court in the hearing, the Requesting Non-Parties did not ask to be 

invited to these disputes and indeed have an interest in limiting their involvement. Moreover, 

even certain defendants agree that consolidation can be effective and helpful, as long as it 

leads to substantive discovery and a fair result. Arguments that too many differences exist 

among the discovery requests, or that the same discovery is sought for different purposes are 

unavailing. The subpoenas have identical requests in numerous regards. Even certain 

Case 6:20-cv-00489-ADA Document 172 Filed 03/04/22 Page 6 of 9
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subpoenas include matching typographical errors, despite one defendant’s claim that the 

requests are for different purposes. The Court finds that sufficient issues of law or fact are 

common to warrant consolidation as follows:

1. Formalities and Future Filings. This Order to Consolidate is not a generalpurpose consolidation and applies to third party discovery to the Requesting Non-Parties only. 

The clerk of the Court is instructed not to formally consolidate on the docket. Parties are also 

instructed to file motions in all of the above-captioned cases, not just a self-designated lead 

case. Filings in each of the cases that are subject to this Order to Consolidate must be identical 

and include the caption of all related cases.

2. Document Production. To the extent that a Requesting Non-Party has produced

documents, or produces documents in the future, in response to a subpoena from any of the 

defendants in these consolidated cases, such Requesting Non-Party shall hereby be allowed 

to produce the same set of documents to the other defendants subject to this Order. If a 

Requesting Non-Party designates any documents pursuant to a protective order (e.g., as 

"CONFIDENTIAL" or "CONFIDENTIAL - ATTORNEYS' EYES ONLY") in one case, then 

the same designation shall hereby automatically be deemed to apply in the other cases and as 

to theother defendants subject to this Order.

3. Depositions. Prior to any Requesting Non-Parties appearing for a deposition in

connection with any of these consolidated cases, the following procedures shall apply: the 

defendants in the consolidated cases are ordered to confer with each other, review the Court's 

relevant prior discovery rulings in any of the consolidated cases, and agree on a single, 

consolidated list of deposition topics as to each Requesting Non-Party. Defendants must also 

supplement the list with any topics that they feel are unique to their case. The Court will allow

Case 6:20-cv-00489-ADA Document 172 Filed 03/04/22 Page 7 of 9
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a single consolidated deposition of seven (7) hours, plus a reasonable amount of time per 

defendant. Should the Requesting Non-Parties or defendants believe that the depositions are 

overly repetitive, are going too long, or that more time is needed, the parties are instructed to 

call the Court for immediate resolution. However, the Court notes that many of the attorneys 

involved maintain “frequent flier miles” here. Accordingly, the Court expects that the parties 

can resolve these issues alone. The Requesting Non-Parties also have adequate protections 

under Rule 45(d)(1) of the Federal Rules of Civil Procedure. Any deposition of a Requesting

Non-Party taken pursuant to this Order will be usable in all of the cases consolidated pursuant 

to this Order in which a subpoena for deposition has been issued to such Requesting NonParty. 

4. Discovery Proceedings. With respect to any future discovery proceedings 

related to the Requesting Non-Parties or otherwise subject to this Order—proceedings which 

specifically include the motions to compel filed by Google in the District of Delaware,which 

have been transferred to this district and assigned case numbers 6:21-mc-1269, 6:21-mc-1270, 

and 6:21-mc-1309, in the Western District of Texas, and WSOU's motion for a protective 

order filed in the Google cases (together, the "Google Motions")—the parties in the 

consolidated cases shall cooperate and coordinate with respect to briefing and argument. And 

whatever the Court decides with respect to a discovery issue decided under this Order shall 

apply to the other cases that are or that may become subject to this Order.

5. Hearing on the Google Motions. Hearing on the Google Motions is hereby set 

for March 21, 2022 at 2:00pm. All parties subject to these consolidated proceedings are

invited to participate in the hearing on the Google Motions and will be bound by what the 

Court decides. Any defendant other than Google that wishes to be heard at the hearing on the 

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Google Motions, such as to support Google's position or argue that its own subpoenas to the 

Requesting Non-Parties should be treated differently, is invited to file a single brief of five 

pages or less by Monday, March 14, 2022. WSOU and the Requesting Non- Parties may 

then each file a single brief, of five pages or less, responding to the other defendants' briefs

by Friday, March 18, 2022.

6. Additional Defendants. WSOU and the Requesting Non-Parties may apply to the

Court, for good cause shown, to include within the scope of this Order additional defendants and 

cases before this Court in which discovery is open. Any defendant proposed to be included within 

this order may object to such a request and argue why there are special facts giving rise for a need 

to obtain additional or different discovery from the Requesting Non-Parties on topics different 

from the topics covered by prior defendants. However, if the Court grants the request to include 

an additional defendant within the scope of this order, then any documents or deposition testimony 

previously produced pursuant to this order shall be produced to that new defendant pursuant to 

this Order, in full satisfaction of the Requesting Non-Parties' discovery obligations to that new 

defendant, subject, however, toany conditions or extra discovery allowed or imposed by the Court 

at that time

To the extent this Order to Consolidate limits or changes the usual course of discovery, 

it shall be deemed a protective order, which is hereby ENTERED on the terms set out above, 

per rule 26(c) of the Federal Rules of Civil Procedure.

SO ORDERED.

SIGNED this 4th day of March, 2022.

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