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CONFIDENTIAL Page 1 of 3

Morgan E. Pietz

morgan@pstrials.com

November 11, 2021

VIA ELECTRONIC MAIL

Kyanna Sabanoglu KSabanoglu@gibsondunn.com

Allen Kathir AKathir@gibsondunn.com

Re:

BasePoint Administrative, LLC’s Objections to Third Party Subpoena

WSOU Investments, LLC v. Dell Tech., Inc., et al., W.D. Tex. No. 6:20-cv-475, etc.

Dear Kyanna and Allen,

Please find attached written objections and responses to the subpoena that

Defendants Dell Technologies, Inc., Dell, Inc., and EMC Corporation (“Dell”) served on 

BasePoint Administrative, LLC, in connection with its litigation against WSOU in the 

Western District of Texas.

As my co-counsel Mr. Millimet noted in his email of 10/8, referencing an earlier 

conversation between him and Mr. Shelton, Dell’s subpoena was not served on the 

correct entity. The proper entity for service was the lender, BP Funding Trust.

Of more concern than the ‘wrong entity’ issue, is the fact that our clients have now 

become aware of—indeed, unhappily embroiled in—disputes between WSOU and 

certain defendants it has sued for patent infringement in the Western District of Texas, 

including Microsoft and Google, about the same documents that Dell has also now 

requested through the instant subpoena.

As you are probably aware, the “agreement for responding to a similar subpoena 

issued by Google LLC in its litigation with WSOU,” which Mr. Millimet mentioned in his 

10/8 email, has been set aside. The reason why, was because WSOU informed us that 

Microsoft recently sought these very same documents set out in Mr. Millimet’s 10/8 

email, in party discovery it propounded on WSOU, and that Microsoft filed a motion to 

compel production, which we understand was then denied by Judge Albright. WSOU 

notified us that it was filing a motion for a protective order concerning these documents 

in the Western District of Texas.

Google knew that Judge Albright had denied the motion to obtain the very same 

discovery from WSOU in party discovery in the Microsoft case, because WSOU informed 

Google of this in a letter. When Mr. Millimet initially reached a deal with Google, he 

was unaware of all this, and Google failed to mention it. 

After WSOU informed us of the ruling in the Microsoft case, and further indicated it 

would be seeking a protective order in Texas, and explained that the effort to obtain 

documents from BP Funding Trust was really an attempted end run around Judge 

Case 6:20-cv-00473-ADA Document 164-4 Filed 03/14/22 Page 1 of 3
BasePoint Administrative, LLC’s Objections to Third Party Subpoena

November 11, 2021

CONFIDENTIAL Page 2 of 3

Albright’s prior ruling about these documents in the Microsoft case, Mr. Millimet 

indicated he would need to talk all this over with our client.

Google responded to Mr. Millimet’s hesitation (which was more than appropriate under 

the change in circumstances) by declaring an emergency, rushing into court in 

Delaware (the place for compliance with the subpoena) to file a motion to compel, in 

which Google renounced the prior agreement Mr. Millimet mentioned in his 10/8 email 

below, and sought to compel BP Funding Trust to produce all of the documents 

requested in Google’s plainly overbroad subpoena. Google moved to compel 

depositions while ignoring the prior agreement to discuss the need for deposition(s) 

after receipt of the documents.

We opposed Google’s motion to compel, setting out all the above, and asked the 

Delaware court to transfer all the subpoena-related proceedings back to Judge 

Albright in Texas per Rule 45(f). WSOU’s motion for a protective order concerning these 

documents in Texas, Google’s motion to compel production of them in Delaware, and 

a joint motion to transfer Google’s motion to compel back to Texas under Rule 45(f) are 

all still pending.

We understand from WSOU’s counsel, that Google and Dell claim to be in a joint 

defense agreement. So, I assume you are aware of all of this. Further, Mr. Shelton, your 

co-counsel who signed the instant subpoena on BasePoint Administrative for Dell, is also 

local counsel for Microsoft. We understand that Mr. Shelton was present at the hearing 

at which Judge Albright denied this same discovery in the Microsoft cases. Please see

the attached docket report and ECF notice, indicating that Mr. Shelton was the person 

tasked with writing up a proposed order memorializing Judge Albright’s discovery ruling 

denying Microsoft’s motion to compel as to the BP Funding documents.

BP Funding has also now been subpoenaed by yet another defendant, called ZTE, 

which served an identical subpoena to the one previously served by Google.

Our client’s bottom line is this: Dell, Google, ZTE, and anyone else, all need to work this 

out directly with WSOU before Judge Albright in Texas. I understand Judge Albright 

expressed concerns about relevance and burden. A party propounding a subpoena 

on a third party has an affirmative duty to minimize burden on that third party, and 

should generally seek discovery from a party before burdening a third party. As far as I 

am aware, this has not yet been done here by Dell, and we are not willing to step past 

the requirement that Dell make a serious, good faith effort to work all this out with WSOU 

directly, including by going before Judge Alright, if necessary, before burdening our 

client, a third party who made a loan years ago that has long since been paid off, with 

producing documents or testimony.

We are happy to discuss this matter with you further. But we are not going to be 

producing any documents or witnesses at this time for the reasons set out above and in 

the attached objections to the subpoena.

Case 6:20-cv-00473-ADA Document 164-4 Filed 03/14/22 Page 2 of 3
BasePoint Administrative, LLC’s Objections to Third Party Subpoena

November 11, 2021

CONFIDENTIAL Page 3 of 3

Best regards,

Morgan E. Pietz

PIETZ & SHAHRIARI, LLP

Cc(s): Barry Shelton bshelton@sheltoncoburn.com

Travis Richins travis@etheridgelaw.com

Rob Millimet Rob@stantonllp.com

Julie Goerlinger Julie@PSTrials.com

Additional attorneys at Gibson Dunn on the service list:

bhershkowitz@gibsondunn.com

brosenthal@gibsondunn.com

ptrochia@gibsondunn.com

vallahyarzadeh@gibsondunn.com

ablythe@gibsondunn.com

ewhitcher@gibsondunn.com

jschung@gibsondunn.com

ehsin@gibsondunn.com

riwahashi@gibsondunn.com

BBarnes@gibsondunn.com

Enclosure(s):

2021.11.11 - Basepoint Administrative LLC Objection to Dell EMC Subpoena

Docket Report and ECF No. 92 in W.D. Tex. No. 6-20-460-ADA

Case 6:20-cv-00473-ADA Document 164-4 Filed 03/14/22 Page 3 of 3