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., 

EMC CORPORATION, AND VMWARE, INC.,

Defendants.

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

WSOU INVESTMENTS, LLC D/B/A BRAZOS 

LICENSING AND DEVELOPMENT,

Plaintiff,

V.

ZTE CORPORATION,

Defendant.

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

WSOU INVESTMENTS, LLC D/B/A BRAZOS 

LICENSING AND DEVELOPMENT,

Plaintiff,

V.

GOOGLE, LLC,

Defendant.

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

Case 6:20-cv-00473-ADA Document 164 Filed 03/14/22 Page 1 of 11
WSOU INVESTMENTS, LLC D/B/A BRAZOS 

LICENSING AND DEVELOPMENT,

Plaintiff,

V.

HEWLETT PACKARD ENTERPRISE 

COMPANY,

Defendant.

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

GOOGLE, LLC,

Petitioner,

V.

TERRIER SSC, LLC,

Respondent.

Case Number:

6:21-cv-01269-ADA

GOOGLE, LLC,

Petitioner,

V.

BP FUNDING TRUST,

Respondent.

Case Number:

6:21-cv-01270-ADA

GOOGLE, LLC,

Petitioner,

V.

AQUA LICENSING, LLC,

Respondent.

Case Number:

6:21-cv-01309-ADA

JOINDER OF THE DELL DEFENDANTS TO GOOGLE’S MOTION TO COMPEL 

RESPONSES TO SUBPOENA FROM BASEPOINT 

Case 6:20-cv-00473-ADA Document 164 Filed 03/14/22 Page 2 of 11
TABLE OF CONTENTS

Page

i

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

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

III. THE COURT SHOULD COMPEL BASEPOINT TO COMPLY WITH THE 

SUBPOENA AND PRODUCE THE DOCUMENTS IT ALREADY AGREED 

TO PRODUCE.................................................................................................................... 3

IV. CONCLUSION................................................................................................................... 5

Case 6:20-cv-00473-ADA Document 164 Filed 03/14/22 Page 3 of 11
TABLE OF ABBREVIATIONS

ii

Abbreviation Term

BasePoint BP Funding Trust, BasePoint Administrative, LLC, and related 

entitites

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

Loan Agreement The “Loan Agreement” between WSOU and BasePoint referenced 

in Section 4 of the BasePoint Patent Security Agreement. See

Google LLC v. BP Funding Trust, Case No. 6:21-cv-01270-ADA, 

ECF No. 1-1 at 175 (Reel 056526/Frame 0226).

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

Development

Case 6:20-cv-00473-ADA Document 164 Filed 03/14/22 Page 4 of 11
1

I. INTRODUCTION

Dell respectfully files this brief in support of Google’s motions to compel BasePoint to 

comply with their respective subpoenas. In addition to the reasons stated in Google’s motions,

Dell provides the following additional statements concerning reasons specific to Dell to compel 

compliance. 

Dell timely subpoenaed BasePoint seeking documents related to BasePoint’s security 

interest in the asserted patents, including a Loan Agreement that describes BasePoint’s rights in 

the patents and certain valuations and analyses of the patents-in-suit. The Loan Agreement and 

related documents are relevant, including to whether WSOU has standing to sue Dell based on the 

asserted patents; Dell suspects that the documents will reveal that WSOU did not in fact have 

standing to sue, and if standing is lacking, the cases against Dell would need to be dismissed. 

In response to Dell’s subpoena, BasePoint agreed to produce a set of responsive documents 

that BasePoint itself described as “efficient and not unduly burdensome.” However, before

BasePoint produced the agreed-upon documents, Plaintiff WSOU intervened to block the 

production, instructing BasePoint not to produce BasePoint’s documents. WSOU, of course, has 

no reason to prevent BasePoint from producing documents other than to prevent Dell from 

learning the sought-after information. That WSOU has gone to great lengths to hide this 

information—despite no burden on WSOU and an agreement to produce from BasePoint—

strongly suggests that this discovery will lead to information probative of WSOU’s lack of 

standing (or other relevant information). Following WSOU’s intervention, and apparently based 

on WSOU’s instruction, BasePoint reneged on its agreement and has since refused to produce a 

single document. 

BasePointshould be held to its prior commitment to produce documents. Those documents 

are relevant, they are already collected, and there is no undue burden to simply producing them. 

Case 6:20-cv-00473-ADA Document 164 Filed 03/14/22 Page 5 of 11
2

Moreover, BasePoint waived all objections to Dell’s subpoena by not serving any objections until 

nearly two months past the deadline. Accordingly, and for the reasons stated in Google’s motion, 

the Court should compel BasePoint to comply with Dell’s subpoena as originally agreed.

II. BACKGROUND

Much of the relevant background and procedural history is explained in Google’s motions. 

Google LLC v. BP Funding Trust, Case No. 6:21-cv-01270-ADA (W.D. Tex. 2021), ECF No. 1. 

Dell incorporates by reference that background and writes separately to explain facts specific to 

Dell. 

Dell timely served a subpoena for documents and a deposition on BasePoint on August 20, 

2021. (Ex. A.) Dell’s document requests were substantially similar to Google’s and sought 

documents related to BasePoint’s security interest in the patents-in-suit, the Loan Agreement 

related to those interests, and other documents related to the valuation of the asserted patents and 

WSOU’s standing to file the above-captioned cases. 

BasePoint’s response to the subpoena was due on September 17, 2021. (Ex. A at 1.) 

BasePoint did not serve any objections to the subpoena by the deadline. Rather, on October 8, 

2021, BasePoint sent Dell an email specifically agreeing to produce particular categories of 

documents. Specifically, BasePoint agreed that it would produce: 

1. “The security or loan agreement itself between BasePoint and WSOU.”

2. “[D]ocuments and communications (including email) leading up to and including the 

loan or security agreement entered into by and between BasePoint and WSOU in May 

of 2019.”

3. Documents provided to BasePoint by WSOU regarding the assets securing the loan, 

including “valuations or opinions regarding any of the assets/patents.”

4. Documents regarding the transfer of the security interest to a third party in January 

2020.

5. The official agreement transferring the WSOU loan or security agreement to Terrier.

Case 6:20-cv-00473-ADA Document 164 Filed 03/14/22 Page 6 of 11
3

6. Communications with WSOU concerning the loan or the patents after January 2020 

(but not including communications regarding the subpoena).

(Ex. B.) BasePoint, not Dell, came up with this list of documents. And BasePoint explicitly 

characterized this production as “not unduly burdensome.” (Id.)

However, after agreeing on October 8, 2021 to produce these documents, on November 4, 

2021, BasePoint reneged on the agreement, claiming that “circumstances have changed.” On 

November 11, 2021, BasePoint sent Dell a letter explaining that the “changed circumstances” were 

that WSOU had interceded and instructed BasePoint not to produce the documents that it had 

already agreed to produce, and that WSOU would be seeking a protective order vis-à-vis Google. 

(Ex. C at 1.) On the same day, BasePoint belatedly served objections to the subpoena, nearly two 

months after the deadline.

III. THE COURT SHOULD COMPEL BASEPOINT TO COMPLY WITH THE 

SUBPOENA AND PRODUCE THE DOCUMENTS IT ALREADY AGREED TO 

PRODUCE

Dell joins Google’s motion in its entirety; BasePoint should be compelled to comply with 

Dell’s subpoena, which is substantially similar to Google’s subpoena, for all the reasons stated in 

Google’s motion, which Dell need not repeat here. ECF No. 1.

1

 There are certain points 

specific to Dell that bear emphasizing.

First, BasePoint agreed to produce the documents at issue, and it should be held to its 

agreement. The documents sought in Dell’s subpoena seek relevant information, and, as 

BasePoint has already admitted, are not unduly burdensome. Indeed, BasePoint apparently

already collected the responsive documents, as it was one day away from producing them to 

Google before WSOU intervened. See ECF No. 1 ¶¶ 16–17. It is only because of WSOU that 

1 Citations to ECF numbers are to the case Google LLC v. BP Funding Trust, 6:21-cv01270-ADA (W.D. Tex. 2021). 

Case 6:20-cv-00473-ADA Document 164 Filed 03/14/22 Page 7 of 11
4

there is even a dispute. That WSOU has stepped in to block production of ready-to-produce 

documents only confirms that those documents are likely to contain information undermining 

WSOU’s position that it has standing. WSOU otherwise has no legitimate interest in this dispute 

since the production is no burden to them and is, admittedly, no burden to BasePoint either.

Second, BasePoint indisputably waived all objections to the subpoena by failing to assert 

timely objections. See Perez v. Boecken, 2020 WL 2733954, at *3 (W.D. Tex. May 26, 

2020), aff'd, 2020 WL 3163192 (W.D. Tex. June 12, 2020) (holding that failure to serve timely 

objections within 14 days of service of subpoena means waiver of the same); see also ECF No. 

14 at 14 (collecting cases). Accordingly, BasePoint has no basis to resist the subpoena or to 

renege on its agreement to produce the set of documents that it already collected and already 

agreed to produce.

In its opposition to Google’s motion, BasePoint claims that its failure to timely object 

should be ignored because “the subpoena is overbroad on its face.” But that is directly 

contradicted by the fact that BasePoint already agreed to produce the documents at issue. 

Regardless of whether the original subpoena was overbroad (it was not), there is no justification 

for refusing to produce the documents that BasePoint already described as “not unduly 

burdensome” and had agreed to produce, and thus conceded were not overbroad. (See Ex __ 

[Oct. 8, 2021 email]). BasePoint also argued that its “good faith” should excuse its waiver. 

(Opp. at 12). But agreeing to produce documents and then reneging on that agreement certainly 

is not “unusual circumstances”—let alone “good faith”—that would justify forgiving waiver. Cf.

I-Enter. Co. v. Draper Fisher Jurvetson Mgmt. Co., 2005 WL 8177425, at *3 (N.D. Cal. Sept. 

15, 2005) (finding unusual circumstances where non-party acted in good faith by producing 

12,000 documents in response to subpoena request).

Case 6:20-cv-00473-ADA Document 164 Filed 03/14/22 Page 8 of 11
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IV. CONCLUSION

For the foregoing reasons, and those stated in Google’s motion, Dell respectfully requests 

that the Court compel BasePoint to comply with Dell’s subpoena. 

Case 6:20-cv-00473-ADA Document 164 Filed 03/14/22 Page 9 of 11
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Dated: March 14, 2022 By: /s/ Barry K. Shelton

Barry K. Shelton

Texas State Bar No. 24055029

bshelton@winston.com

WINSTON STRAWN LLP

2121 N. Pearl Street, Suite 900

Dallas, TX 75201-2494

Telephone: 214.453.6407

Facsimile: 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 Avenue

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 Street, Suite 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 Road

Palo Alto, CA 94304-1211

Telephone: 650.849.5300

Facsimile: 650.849.5333

Attorneys for Defendants

Case 6:20-cv-00473-ADA Document 164 Filed 03/14/22 Page 10 of 11
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CERTIFICATE OF SERVICE

The undersigned certifies that on March 14, 2021, all counsel of record are being served 

with a copy of this document through the Court’s CM/ECF system and through electronic mail. 

/s/ Barry K. Shelton 

Barry K. Shelton

Case 6:20-cv-00473-ADA Document 164 Filed 03/14/22 Page 11 of 11