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. 

ZTE CORPORATION, ZTE (USA) INC. 

AND ZTE (TX), INC.,

 Defendants.

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C.A. NO. 6:20-cv-00487-ADA

C.A. NO. 6:20-cv-00488-ADA

C.A. NO. 6:20-cv-00489-ADA

C.A. NO. 6:20-cv-00490-ADA

C.A. NO. 6:20-cv-00491-ADA

C.A. NO. 6:20-cv-00492-ADA

C.A. NO. 6:20-cv-00493-ADA

C.A. NO. 6:20-cv-00494-ADA

C.A. NO. 6:20-cv-00495-ADA

C.A. NO. 6:20-cv-00496-ADA

C.A. NO. 6:20-cv-00497-ADA

DEFENDANT’S RESPONSE1 TO THIRD-PARTY MOTION FOR LIMITED 

CONSOLIDATION AND PROTECTIVE ORDER

1 There are 11 pending cases here in the WDTX. Citations throughout refer to Case Nos. -00487 

through -00497, and specific citations reference to the docket for Case No. -00487.

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ZTE opposes the pending motion to consolidate discovery.2 ZTE has no pending Motion 

to Compel in any forum for consolidation.3 And ZTE does not seek discovery for standing issues, 

rather ZTE is the only Defendant seeking discovery for damages issues. The only commonality 

here is that these actions involve the same plaintiff - and same Third-Parties. Similarly worded 

subpoena discovery requests, viewed in isolation, are an insufficient basis for consolidation. The 

facts for each Defendant are different, as each set of actions involves different accused devices,

different asserted patents, different patent file histories, different patent licenses, and presumably 

different patent purchasing agreements. The legal theories are different for at least ZTE as well, as 

ZTE seeks discovery of damages issues—which is supported by Delaware law, the Third-Parties’ 

local forum. Acceleration Bay LLC v. Activision Blizzard, Inc., 2018 WL 798731, at *3 (D. Del. 

Feb. 9, 2018) (finding discovery over third-parties as proper as such “may be relevant to central 

issues like validity and infringement, valuation, damages, royalty rates, pre-suit investigative 

diligence, and whether [Plaintiff] is an operating company,” and that “common sense”).

The Third-Parties here refused to address ZTE’s positions. In fact, the Third-Parties refused 

to properly confer with ZTE on its positions, refused to address them in any communications, and 

refused to address them until court briefing, where they are “happy to address in a response brief.” 

2 WSOU Investments, LLC (“WSOU”)—an entity formed ostensibly for the purpose of 

monetizing its purchased patent portfolio through litigation—and its agents (collectively the 

“Third-Parties”) Aqua Licensing, LLC (“Aqua”) (retained to secure the purchase of patents and 

then to sell and/or licenses those patents), and BP Funding Trust (“BP”) and Terrier SSC, LLC 

(“Terrier”) (financiers of the patent purchases) move for consolidation and a protective order to 

prevent discovery and separate depositions of its witnesses among multiple actions it brought 

against nonparties Google, HPE, Dell, and Defendant ZTE Corporation (“ZTE”). Dkt. 161 (Motion 

by Aqua, BP, and Terrier joined by WSOU). The movants seek to limit arguments herein to 

standing issues, which this Court allegedly ordered all such discovery closed off in Microsoft.

3 ZTE notes that its pending Motion to Stay all case activity until the resolution of the Federal 

Circuit ruling on venue in In re ZTE remains pending, and briefing is underway thereon. Dkt. 163.

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Dkt. 161, p. 15 (emphasis added). This district already found that such a dilatory tactic is improper, 

as a meet-and-confer requires the movant to make a good-faith effort to “resolve the dispute 

without court action.” Infernal Technology, LLC v. Epic Games, Inc., 2021 WL 2292804, *2 

(W.D. Tex. 2021) (emphasis added). Hiding a legal basis for opposition to discovery until the reply

briefing here is very improper, and that is sufficient grounds for denial all itself.

For these and the reasons below, the movants’ motion should be denied in its entirety.

I. BACKGROUND

Based on the redacted briefing in Microsoft, discovery and proceedings therein dealt with 

legal issues for the alpha (beginning) period of a case such as ownership and standing. WSOU v. 

Microsoft, No. 6:20-cv-457, Dkt. 79 (W.D. Tex. Nov. 2, 2021); see also Dkt. 161, p. 6. Each of 

the other Defendants seek discovery under a similar standing relevancy theory. Dkt. 161, p. 6.

ZTE, on the other hand, seeks discovery from Third-Parties based on an omega (ending) 

case period such as damages, costs, valuation, and licensing. Even if there may be overlap of

documents and information, it is believed that each of the three Third-Parties solely possess select 

discoverable documents. ZTE sought this discovery from each under its unique damages theory.

But they refused entirely. For instance, on December 8, 2021, ZTE wrote Aqua, BP, and Terrier 

individually indicating that the “underlying document requests . . . are relevant to the issues of 

infringement and damages in the underlying cases.” See Ex. 1, p. 2. ZTE further wrote that:

ZTE: “Regarding relevancy, the District of Delaware recognizes that discovery requests of this nature 

are proper, and are likely to produce relevant documents and information. Discovery over thirdparties—even third-parties with security interests—are proper and ‘may be relevant to central issues 

like validity and infringement, valuation, damages, royalty rates, pre-suit investigative diligence, and 

whether [Plaintiff] is an operating company,” and that “common sense” confirms the document request 

relevancy.” Id. at pp. 6, 10 (citing Acceleration Bay, 2018 WL 798731 at *3 (D. Del. Feb. 9, 2018).

On December 16, 2021, counsel for Third-Parties stated that they refused to produce the requested 

documents, and further refused to provide their position with respect to Delaware case law, 

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Acceleration Bay. See Ex. 2. Then, counsel for the Third-Parties further confirmed their refusal to 

provide their legal basis for opposition to ZTE’s damages relevancy theory until court briefing:

TP: “Delaware district court orders are not controlling as to anything, but I would suggest that you can 

feel free to make whatever arguments you want to make in this regard in the supplemental brief that I 

have proposed that you should have a chance to file, should you choose to do so.” Ex. 3, p. 2.

Before filing, ZTE confirmed the Third-Parties refused to reduce party costs without court action:

ZTE: “ZTE clarified that its subpoenas and requested discovery therein are different from the requested 

discovery from Google’s subpoena and from the subsequent Google Motion to Compel in Delaware. 

For instance, ZTE’s subpoenas are not limited to standing issues, but rather, ZTE’s subpoenas seek 

information pertaining to damages for its particular 11 cases in the WDTX (i.e., the Georgia-Pacific 

factors). . . We have sought your position from BP & Terrier on these damages issues, which it is our 

understanding, are quite different from the standing issues that are addressed in the sealed Microsoft 

briefing and the Google Motion to Compel. We further confirmed via email and during the January 

20th meet-and-confer that BP & Terrier refuse to provide their legal support to us prior to its planned 

briefing (and thus further refused to reduce party costs through resolution outside briefing).” Ex. 4, p.2.

II. LEGAL STANDARD

A. Movant Bears the Burden of Proof that Consolidation is Proper

The Court may, if “actions before the court involve a common question of law or fact, the 

court may” consolidate the actions. FED. R. CIV. P. 42(a). However, the party seeking the 

consolidation bears the burden of proof that consolidation would be proper. In re Repetitive Stress 

Injury Litigation, 11 F.3d 368, 373 (2d Cir. 1993). Absent a common question, consolidating 

actions under Rule 42(a) is an abuse of discretion. See Enterprise Bank v. Saettele, 21 F.3d 233, 

235-36 (8th Cir. 1994). The mere existence of a common legal theory is insufficient for the 

common question, especially when the common legal theory requires resolution of facts unique to 

each individual party. See Johnson v. Celotex Corp., 899 F.2d 1281, 1285 (2d Cir. 1990).

Additionally, a district court may only order consolidation of those matters before it, requiring 

transfer otherwise. See Swindell-Dressler Corp. v. Dumbauld, 308 F.2d 267, 273 (3d Cir. 1962). 

Case 6:20-cv-00487-ADA Document 165 Filed 01/28/22 Page 4 of 12
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B. Movant Bears the Burden of Showing the Necessity of a Protective Order

The Court “may, for good cause, issue an order to protect a party or person from annoyance, 

embarrassment, oppression, or undue burden or expense.” See FED. R. CIV. P. 26(c). The movant 

bears the burden of showing the necessity of a protective order. See, e.g., Morrow v. City of Tenaha 

Deputy City Marshal, 2010 WL 2721400, at *2 (E.D. Tex. July 8, 2010); In re Terra Int'l, 134 

F.3d 302, 306 (5th Cir. 1998)). And the movant must prove that “good cause” exists with a specific 

showing that the requested discovery will result in a clearly defined and serious injury, and broad 

conclusory allegations of harm do not suffice. Pansy v. Borough of Stroudsburg, 23 F.3d 772, 786 

(3d Cir. 1994); see also American Standard Inc. v. Pfizer Inc., 828 F.2d 734, 740 (Fed. Cir. 1987).

C. Movant Bears the Burden to Show Whether Subpoena is Unreasonable

If the subpoena subjects a person to “undue burden,” then the Court may quash or modify 

the subpoena. FED. R. CIV. P. 45(D)(1)-(3). The “burden of proving that a subpoena is oppressive 

is on the party moving to quash and is a heavy one.” Heat and Control, Inc. v. Hester Industries, 

Inc., 785 F.2d 1017, 1025 (Fed. Cir. 1986). Evidence sought from the non-party need not be 

admissible or “probative” evidence to be relevant and discoverable. Truswal Systems Corp. v. 

Hydro-Air Engineering, Inc., 813 F.2d 1207, 1212 (Fed. Cir. 1987). And, “[a]ccordingly, the scope 

of discovery is broad,” including to certain third-parties. Infernal, 2021 WL 2292804, *1 (W.D. 

Tex. 2021) (quoting Crosby v. La Health Ser. & Indem. Co., 647 F.3d 258, 262 (5th Cir. 2011)).

III. ARGUMENT

Not only should the movants’ motion be denied for the reasons below, but ZTE again 

requests that this Court stay all case activity in its cases—including any discovery disputes whether 

between parties or nonparties, until the Federal Circuit rules on the pending petition in In re ZTE.

Case 6:20-cv-00487-ADA Document 165 Filed 01/28/22 Page 5 of 12
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Dkt. 163. ZTE respectfully requests that the Court prioritize its Motion to Stay its 11 cases, Dkt. 

163, given the underlying Federal Circuit briefing on ZTE’s consolidation in the transferee forum.

A. No ZTE Motion to Compel Before this Court (or Any Court) for Consolidation

Without a pending ZTE Motion to Compel of any Third-Party, in any district court, there 

is no ZTE action to hitch on the proposed wagon train of consolidation in the WDTX, as sought 

by the movants here. The party seeking consolidation bears the burden of proof that consolidation 

is proper. Repetitive Stress, 11 F.3d at 373 (2d Cir. 1993). But before even addressing the Third 

Parties’ burden of proof, a district court may only order consolidation of those matters before it, 

and if not before it, then an action must first be transferred to one district before a motion to 

consolidate may be entertained. See Dumbauld, 308 F.2d at 273 (3d Cir. 1962). ZTE has no Motion 

to Compel pending in this district, or in any district for transfer, thus consolidating a non-existent

ZTE matter is improper and should not be entertained. Furthermore, in view of the non-existent

ZTE Motion to Compel, there is no way the Third-Parties can meet any of their burdens of proof.

B. The Third-Parties Failed to Confer to Minimize Court Involvement

Worse yet, the Third-Parties seek to steer its consolidation wagon train with mere strawmen 

arguments. The Third-Parties refuse to confer with respect to ZTE’s unique facts and damages law

for the requested discovery of all three. In fact, they selectively disclose facts to the Court to

improperly contain the complex relevancy legal theories into an already-decided-behind-closeddoors decision from the sealed Microsoft ruling, which ZTE understands pertains to legal theories 

of relevancy for standing. See Dkt. 161, p. 6 (arguing that discovery is “a fishing expedition about 

standing”). But, the reality—which underscores the lack of commonality for ZTE’s issues—is that 

ZTE does not seek this discovery based on a legal theory of relevancy for standing, instead, ZTE 

seeks discovery based on a relevancy theory for damages. The Third-Parties’ motion entirely 

Case 6:20-cv-00487-ADA Document 165 Filed 01/28/22 Page 6 of 12
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ignores damages. Dkt. 161. And their refusal to acknowledge ZTE’s unique facts and unique law

for discovery requests further demonstrates a lack of commonality for at least ZTE.

Most telling is that the Third-Party motion has no certificate of conference (as required).

The Third-Parties’ failure to properly meet and confer with ZTE, and the further failure to certify 

that they met in “good faith” to “resolve the dispute without court action,” is also reason enough 

to deny the consolidation. The WDTX court in Infernal admonished the movant for its failed 

attempt to resolve such issues promptly and amicably without court involvement. Infernal, 2021 

WL 2292804 at *2 (W.D. Tex. June 4, 2021). In fact, even though it “appear[ed] that counsel for 

the parties had a phone conversation before the Motion was filed,” the WDTX court nevertheless 

found that the movant’s “failure to certify . . . [was] sufficient for the Court to deny the Motion 

under Local Rule CV-7(i).” Id. The Third-Party motion similarly failed to certify here. Dkt. 161.

And it is not surprising that the Third-Parties forgo the meet-and-confer certification rules, 

as to do so requires finally acknowledging ZTE’s unique facts and unique legal theories pertaining 

to damages (setting it apart as unique). Instead of acknowledging the differences for at least ZTE, 

the Third-Parties elected to solely focus their briefing on a standing theory of relevancy, 

disregarding ZTE’s damages theory. Dkt. 161, p. 6 (concluding that “none of the defendants has 

put forward any compelling reasons as to why the proposed consolidation should not be granted”). 

In fact, by the Third-Parties’ own admission, they admit that they refused to discuss ZTE’s 

damages theory of relevancy supported by Delaware district case law until their reply briefing

here. Id. at 15. The only mention of “damages” in the opening brief is where the Third-Parties

confirm that they will not address the damages legal theory of relevancy until their reply briefing.

Id. Hiding the ball until briefing—the reply brief no less, after ZTE has no opportunity to 

respond—is the exact opposite of attempting to resolve these issues without court involvement. 

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In its subpoenas in Delaware, ZTE maintained its discovery requests based on its damages 

theory, and ZTE sought discovery from the Third-Parties under the same theory for months, but 

the Third-Parties refused to engage in discussions. See Background Section above. As such, any 

rebuttal by the Third-Parties with respect to ZTE’s damages relevancy positions have been waived.

Moreover, as forum manipulation, the Third-Parties refuse to discuss the relevancy of 

ZTE’s discovery requests under a damages theory, and they hope this Court fails to recognize this 

key Delaware legal theory setting ZTE apart. By volunteering themselves here in the WDTX, 

only for limited standing issues, the Third-Parties reserve the option to oppose production under a 

damages theory (especially if they refuse to discuss it entirely), as this Court lacks the jurisdiction 

to actually compel production. As Delaware entities, this Court is beyond the 100-mile geographic

limit for jurisdiction, thus only the District of Delaware can compel production.4 And the ThirdParties know this, as they oppose any discussion of Delaware law, and any discussion of ZTE’s 

unique damages relevancy theory in order to prevent any production altogether. This is improper.

As the movant, the Third-Parties bear the burden of proving commonality across all 

Defendants, but they refuse to address the facts specific to ZTE. In fact, they improperly conferred

and hid their positions on key facts and law pertaining to ZTE’s discovery requests under the 

damages theory, thereby waiving a rebuttal entirely. As such, in view of the different facts and 

issues, the Third-Parties are unable to prove consolidation here is appropriate for at least ZTE.

C. Third-Parties Failed to Meet Burden Under FRCP 42(a), 26(c), and 45(D)

It is improper to proceed wagon-before-ox, as ZTE has no pending Motion to Compel, 

nevertheless, the Third-Party motion failsto meet the burdens under FRCP 42(a), 26(c), and 45(D).

4 See May 2, 2011, Committee on Rules of Practice and Procedure of the Judicial Conference of 

the United States Memorandum, p. 147 (geographical limitations of subpoenas in Rule 45(b)(2).

Case 6:20-cv-00487-ADA Document 165 Filed 01/28/22 Page 8 of 12
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1. The Reasons Put Forth to Consolidate Fail to Satisfy Rule 42(a)

The reasons that the Third-Parties put forward to consolidate all four matters, as sought in 

their improper motion, do not satisfy the requirements of Rule 42(a). Dkt. 161, pp. 17-20. There 

is neither a common question of law nor a common question of facts across all four Defendants’ 

matters. The Third-Parties failed to satisfy their burden under Rule 42(a) for the reasons below.

As addressed above, there is no common question of law—as the other Defendants seek 

discovery under legal theories of standing relevancy, whereas ZTE seeks discovery under a legal 

theory of damages relevancy. And absent a common question, consolidating actions under Rule 

42(a) is an abuse of discretion. See Enterprise Bank, 21 F.3d at 235-36 (8th Cir. 1994). Unlike 

Microsoft or any other Defendant here, ZTE seeks discovery for damages and information

pertaining to the Georgia-Pacific factors 1-2. And district courts—including the Third-Parties’ 

home district of Delaware—recognize that ZTE’s discovery requests are likely to produce relevant 

documents and information. Acceleration Bay, 2018 WL 798731 at *3 (D. Del. Feb. 9, 2018).

Discovery over third-parties—even third-parties with security interests—are proper and “may be 

relevant to central issues like validity and infringement, valuation, damages, royalty rates, pre-suit 

investigative diligence, and whether [Plaintiff] is an operating company,” and that “common 

sense” confirms the document request relevancy. Id. Thus, there is no common legal question, as

at least ZTE’s discovery requests and their legal support differ from the other Defendants (and are 

likely to lead to different deposition questions).

Nevertheless, for arguendo, even if there was a common legal question, the facts here for 

ZTE differ from the facts of the other Defendants. And, the mere existence of a common legal 

theory is insufficient for the common question especially when the common legal theory requires 

resolution of facts unique to each individual party. See Johnson, 899 F.2d at 1285 (2d Cir. 1990).

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As addressed above, the facts here differ drastically from the other Defendants, as unlike Google, 

ZTE has no pending Motion to Compel. Additionally, each set of actions against Defendants 

include different patents with different file histories with different ties to central issues like validity, 

infringement, valuation, damages, royalty rates, pre-suit investigative diligence, etc., requiring 

resolution of fact inquiries unique to each Defendant. Even if subpoenas are similar, the sought 

after discovery and the underlying facts are drastically different across all these cases.

2. The Reasons Put Forth to Limit Discovery Fail to Satisfy Rule 26(c)

And, further, the reasons to limit discovery do not satisfy the requirements of Rule 26(c) 

either. Dkt. 161, pp. 17-20. The “scope of discovery is broad, encompassing requests that seek 

admissible evidence or are ‘reasonably calculated to lead to the discovery of admissible 

evidence.’” Infernal, 2021 WL 2292804 at *3 (W.D. Tex. June 4, 2021) (quoting Crosby v. La. 

Health Serv. & Indem. Co., 647 F.3d 258, 262 (5th Cir. 2011). The movant must prove that “good 

cause” exists with a specific showing that the requested discovery will result in a clearly defined 

and serious injury, and broad conclusory allegations of harm do not suffice. Pansy, 23 F.3d at 786 

(3d Cir. 1994). Here, the Third-Parties offer nothing at all on their burden, more than broad 

conclusory allegations, and they failed to satisfy the burden under Rule 26(c). Dkt. 161, pp. 17-20.

The Third-Parties identify no burden, certainly no undue burden, in permitting the 

requested discovery. Instead, they identify normal activity of financiers (BP and Terrier), and 

licensors (Aqua) of the patents, borne from conducting business with a self-proclaimed patent 

monetizing and litigating patent owner (WSOU). Dkt. 161, p1. The requested discovery 

(pertaining to validity, infringement, valuation, damages, royalty rates, and pre-suit investigative 

diligence), and the requested discovery activities (producing documents, preparing witnesses, and 

appearing for depositions), are all normal activities for litigating patents—which the Third-Parties 

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played critical roles in purchasing and licensing. Id. All of the Third-Parties anticipated this 

discovery when they engaged with an entity proclaiming to monetize patents through litigation.

This normal activity does not become a burden simply because WSOU chose to file multiple

actions against multiple defendants. It certainly does not justify consolidating four Defendants’ 

discovery request sets—as this is improper and prejudicial to Defendants for each separate action.

3. The Reasons to Effectively Quash Discovery Fail to Satisfy Rule 45(D)

The Third-Parties failed to explicitly request that this Court quash the pending subpoenas, 

but via improper procedures, the Third-Parties have indirectly requested it, by alleging an undue 

burden under Rule 45(D). Dkt. 161, p. 17. The “burden of proving that a subpoena is oppressive 

is on the party moving to quash and is a heavy one.” Heat and Control, 785 F.2d at 1025 (Fed. 

Cir. 1986). As discussed above, the Third-Parties failed to establish a reasonable burden, let alone 

an “undue burden.” Thus, the Third-Parties failed to satisfy their burden under Rule 45(D) as well.

IV. CONCLUSION

For the foregoing reasons, the facts and law support entirely denying the movants’ 

improper requests, especially in view of ZTE’s discovery requested under its unique damages 

theory. Consolidation is also inappropriate at this time, as ZTE has no pending Motion to Compel,

and improper given Third-Parties failure to meet the burdens under FRCP 42(a), 26(c), and 45(D).

DATED: January 28, 2022 Respectfully submitted,

/s/Lionel M. Lavenue 

Lionel M. Lavenue 

Virginia Bar No. 49,005

lionel.lavenue@finnegan.com 

FINNEGAN, HENDERSON, FARABOW, 

GARRETT & DUNNER, LLP

1875 Explorer Street, Suite 800

Reston, VA 20190

Phone: (571) 203-2700

Attorney for Defendant ZTE Corporation

Case 6:20-cv-00487-ADA Document 165 Filed 01/28/22 Page 11 of 12
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CERTIFICATE OF SERVICE

The undersigned hereby certifies that all counsel of record who are deemed to have 

consented to electronic service are being served with a copy of this document via the Court’s 

CM/ECF system on January 28, 2022.

/s/Lionel M. Lavenue 

Lionel M. Lavenue

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