Filed Under Seal 

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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. 

MICROSOFT CORPORATION, 

Defendant. 

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Filed Under Seal 

CIV. ACTION NO. 6:20-CV-00454-ADA 

CIV. ACTION NO. 6:20-CV-00455-ADA 

CIV. ACTION NO. 6:20-CV-00456-ADA 

CIV. ACTION NO. 6:20-CV-00458-ADA 

CIV. ACTION NO. 6:20-CV-00459-ADA 

CIV. ACTION NO. 6:20-CV-00460-ADA 

CIV. ACTION NO. 6:20-CV-00461-ADA 

CIV. ACTION NO. 6:20-CV-00462-ADA 

CIV. ACTION NO. 6:20-CV-00463-ADA 

CIV. ACTION NO. 6:20-CV-00464-ADA 

REPLY IN SUPPORT OF MOTION FOR PROTECTIVE ORDER BY NON-PARTY WADE & 

COMPANY (USA), INC. AND BY WSOU INVESTMENTS LLC 

Case 6:20-cv-00461-ADA Document 80 Filed 09/17/21 Page 1 of 6
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Whether a subpoena imposes an undue burden is a question of reasonableness determined 

by balancing the benefits and burdens of the deposition and whether the information is obtainable 

from an alternative source. MetroPCS v. Thomas, 327 F.R.D. 600, 609 (N.D. Tex. 2018). Here, 

Microsoft makes no attempt to dispute that any discoverable information it seeks to obtain from a 

deposition of Wade and Company (“Wade”) is obtainable from an alternative source. Microsoft 

cannot reasonably dispute this because: (1) no current employee of Wade has knowledge 

concerning the details surrounding the Patent Purchase Agreement Microsoft seeks to depose 

Wade about; and (2) the person who was at Wade who has knowledge of the details surrounding 

the Patent Purchase Agreement is the current president of WSOU, who is designated as a Rule 

30(b)(6) witness and noticed as a Rule 30(b)(1) witness. There can be no question that the 

deposition of Wade to discovery facts known to Mr. Shanus would unreasonably burden Wade. 

A. Microsoft does not need a Wade representative to “verify” the statements in Mr. 

Wade’s declaration, much less to obtain any discoverable information sought in 

its subpoenas. 

 Wade has no documents responsive to Microsoft’s subpoena for documents, and nobody 

at Wade have any knowledge responsive to Microsoft’s subpoena for testimony. See Marc Wade 

Decl. ¶¶ 3 - 5. 

 Microsoft does not need a Wade representative to “verify” the statements in Mr. Wade’s 

declaration. Microsoft can look to its own evidence to confirm Mr. Wade’s statement that he 

Id. ¶4. 

. See Exhibit A.1

 Microsoft does not need to harass Wade, 

a third party with no relevant documents or knowledge, to depose oncerning the 

1

 Exhibit A consists of excerpts from Microsoft’s Exhibit 6. It is being filed only in the -454 case. 

Case 6:20-cv-00461-ADA Document 80 Filed 09/17/21 Page 2 of 6
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documents he signed on behalf of Wade. 

B. The topics in Microsoft’s subpoena are not “targeted to key issues in the case.” 

The topics in Microsoft’s subpoena are not “targeted to key issues in the case,” as Microsoft 

falsely claims in its response. Topics 2-3, 8, 11, and 15 ask for: (1) agreements and 

communications with the named inventors; and (2) information relating to the prosecution of the 

patents, reduction to practice, prior art, or public use of the patents. Microsoft speculates that Wade 

“would have been expected to review such information in the course of preparing to purchase the 

portfolio.” Resp. at 6. Microsoft’s speculation is false. See Wade Decl. ¶¶8-9, 12-14. No 

communication between Wade and the inventors of the asserted patents exists. Moreover, Wade 

has no expertise or even basic knowledge concerning patent prosecution, reduction to practice, 

prior art, or public use of the patents. Id. Thus, any deposition concerning these topics is not only 

a waste of time, but unduly burdensome. 

Microsoft argues it needs a deposition on Topics 4, 6 and 9-10 to discover “information 

regarding offers to buy, sell, obtain rights to, or license the Patents-in-Suit and communications 

with WSOU regarding the patents, the lawsuits, or Microsoft.” Resp. at 5. As Microsoft should 

know by now, information regarding negotiations is not discoverable.2 At the discovery hearing 

on September 7, 2021, Microsoft conceded this by withdrawing it request that the court “order the 

plaintiff to produce all proposed licenses and other negotiation documents.” See September 7, 

2021, 3:30 p.m. Hearing Transcript at 32. The Court remarked: “That was very wise of you. It 

would not have taken very long to get it resolved.” Id. During the same hearing, this Court denied 

Microsoft’s request that WSOU be compelled to produce negotiation letters between WSOU and 

Nokia (regarding the same Patent Purchase Agreement that is at issue in this discovery dispute). 

2

 In Uniloc v. Google, for example, Action No. 2:18-CV-503-JRG-RSP, the Eastern District of Texas denied 

Google’s motion to compel license negotiations. Recognizing that the EDTX had previously found 

“unconsummated settlement and licensing negotiations with the patents-in-suit . . . not discoverable” (see 

Sol IP, LLC v. AT&T Mobility LLC, 2-18-cv-00526, Docket No. 291 at 6-7 (EDTX); Mondis Tech., Ltd. v. 

LG Elecs., Inc., No. 2:07-CV-565, 2011 WL 1714304, at *5 (E.D. Tex. May 4, 2011) (refusing to compel 

negotiations of unconsummated settlement agreements because they are unreliable and because compelling 

them would have a “chilling effect on settlement negotiations”). 

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Id. at 13 (Court: 

. Microsoft is not entitled to discovery on negotiations 

relating to the Patent Purchase Agreement from WSOU; thus, Microsoft is certainly not entitled to 

this information from a nonparty. 

Microsoft argues it needs a deposition on Topics 5-7 and 10 to understand the nature and 

scope of Wade’s rights in the Patents-in-Suit. There is no merit to this argument. The “nature and 

scope of Wade’s rights” in the Patents-in-Suit is determined by the operative documents, which 

Microsoft has, not by deposition testimony.3

 Microsoft makes 

no attempt to explain why it needs extrinsic evidence to determine what is stated on the face of the 

contract. 

C. Wade did not waive its objections to the deposition subpoena. 

Wade did not waive its objections to Microsoft’s subpoena. Wade timely served formal 

objections on April 23, 2021 and June 1, 2021. While the objections specifically address the 

document requests by Microsoft, the document requests and deposition topics are identical.5

Microsoft agreed to extend the date for compliance under the deposition to June 14, 2021 and 

further agreed to “work with you as needed following receipt of the document production and 

3

 New York courts apply an “objective theory of contract.” SR Intern. Business Ins. Co. Ltd., et al. v. World 

Trade Cntr. Prop. LLC, et al., 467 F.3d 107, 125 (2d Cir. 2006) (applying New York law). Contracts are 

construed “by looking to ‘the objective manifestations of the intent of the parties as gathered by their 

expressed words and deeds.’ Oyster Optics, LLC v. Infinera Corp., 2:18-CV-00206-JRG, 2019 WL 

2603173, at *3 (E.D. Tex. June 25, 2019), aff'd, 843 Fed. Appx. 298 (Fed. Cir. 2021) (applying New York 

law). 

4

 This is, by the way, consistent with Mr. Wade’s testimony that 

 Microsoft’s speculation that Wade must have undertaken a 

“diligence analysis” and must have such documents is pure speculation and is false. Wade elected not to 

purchase the patents because it is not in the patent business. 

5

 Microsoft does not claim Wade waived any objections to the document requests, ignoring the document 

subpoena completely, yet seek to depose Wade concerning documents Wade does not have. 

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depending upon the availability of witnesses.” Yang Decl. Ex. 2 at 8. Thereafter, the parties 

continued to confer. By email on June 9, 2021, Wade informed Microsoft that Wade conducted a 

reasonable search and did not locate “any relevant documents” and that Wade “also [does] not 

have relevant knowledge.” Yang Decl. Ex. 2 at 8 (emphasis added). Wade further stated in the 

June 9, 2021 email that “given [Wade’s] lack of relevant information, [it would] not appear for 

depositions” and requested that Microsoft withdraw its depositions. Id. Microsoft falsely claims 

that Wade “did not serve any written objections to the deposition subpoena.” Microsoft’s argument 

ignores Wade’s emails stating its objections. Microsoft’s claim that WSOU never objected, “even 

by email,” to the subpoena should not be mistaken for an allegation that Wade did not timely object 

to the subpoena. Wade served timely objections. Further, given that no deposition time was set by 

the parties during ongoing discussions, Wade’s Rule 26 motion was timely. 

D. Microsoft’s mudslinging should be given no weight. 

Microsoft’s mudslinging should be given no weight. Microsoft falsely claims Wade refused 

to meet and confer. Microsoft’s own evidence shows otherwise. Microsoft falsely claims that Wade 

obtained an extension by misrepresenting that Wade’s “collection of documents was ongoing.” 

Wade made no such representation. As shown by Microsoft’s own evidence, Wade said it was 

working to determine “what documents . . . it may have” and that Wade was working to “determine 

if they have responsive documents.” Yang Decl. at 9-10 (emphasis added). Microsoft also falsely 

insinuates that Wade failed to timely submit its half of a joint submission intended for California. 

Wade did not send its half of the joint submission on September 2, 2021 because Microsoft decided 

to withdraw its request for the submission in favor of having this Court determine this discovery 

dispute. There is nothing treacherous about Wade’s desire to have the Court knowledgeable with 

the facts of this Case resolve discovery disputes. There is also nothing treacherous about Wade’s 

efforts to avoid the necessity of coming to this Court seeking protection from a pointless subpoena. 

Case 6:20-cv-00461-ADA Document 80 Filed 09/17/21 Page 5 of 6
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Dated: September 10, 2021 Respectfully submitted, 

By: /s/ Ryan Loveless 

James L. Etheridge 

Texas Bar No. 24059147 

Ryan S. Loveless 

Texas Bar No. 24036997 

Brett A. Mangrum 

Texas Bar No. 24065671 

Travis L. Richins 

Texas Bar No. 24061296 

Jeffrey Huang 

Brian M. Koide 

Etheridge Law Group, PLLC 

2600 E. Southlake Blvd., Suite 120 / 324 

Southlake, TX 76092 

Tel.: (817) 470-7249 

Fax: (817) 887-5950 

Jim@EtheridgeLaw.com 

Ryan@EtheridgeLaw.com 

Brett@EtheridgeLaw.com 

Travis@EtheridgeLaw.com 

JHuang@EtheridgeLaw.com 

Brian@EtheridgeLaw.com 

 

Counsel for Wade & Company

CERTIFICATE OF SERVICE

A true and correct copy of the foregoing instrument was served or delivered electronically 

via email to all counsel of record on September 10, 2021. 

/s/ Ryan Loveless 

Ryan S. Loveless 

Case 6:20-cv-00461-ADA Document 80 Filed 09/17/21 Page 6 of 6