Joint Motion for Entry of 

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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

WACO DIVISION

WSOU INVESTMENTS, LLC d/b/a § CASE NO. 6:20-CV-533-ADA

BRAZOS LICENSING AND § CASE NO. 6:20-CV-534-ADA

DEVELOPMENT, § CASE NO. 6:20-CV-535-ADA

§ CASE NO. 6:20-CV-536-ADA

Plaintiff, § CASE NO. 6:20-CV-537-ADA

§ CASE NO. 6:20-CV-538-ADA

§ CASE NO. 6:20-CV-539-ADA

v. § CASE NO. 6:20-CV-540-ADA

§ CASE NO. 6:20-CV-541-ADA

HUAWEI TECHNOLOGIES CO. LTD., § CASE NO. 6:20-CV-542-ADA

ET AL. § CASE NO. 6:20-CV-543-ADA

§ CASE NO. 6:20-CV-544-ADA

Defendants. §

JOINT MOTION FOR ENTRY OF DISPUTED PROTECTIVE ORDER

TO THE HONORABLE COURT:

The parties jointly move for entry of a protective order. While the parties have reached 

agreement on most items, certain disputes remain. Each parties’ respective positions are below. 

A proposed protective order with the disputes highlighted is attached as Appendix A. 

Plaintiff WSOU’s Position

While the parties have reached agreement on most of the issues, five issues remain:

(1) Access by Outside Counsel (Sections 5(a))

(2) Resolution of Disputes for Disclosed Experts (Section 5(e)

(3) Source Code Handling (Section 10)

(4) Who can Access Designated Material (Section 15)

(5) Retaining Designated Material (Section 22)

WSOU sought to avoid a dispute and Court involvement by proposing language that 

opposing parties had recently agreed to in negotiations. See e.g., WSOU Investments LLC v. 

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Microsoft Corporation, Case No. 6:20-cv-454, Dkt. 68 (WDTX March 29, 2021) (Joint Motion), 

which the Court subsequently entered at Dkt. 71 (WDTX March 30, 2021) (Order granting 

protective order; the identical order was entered in Case Nos. -454 through -465). WSOU did not 

come up with this language on its own; rather, it was part of a negotiated process. The WSOUMicrosoft Agreed Language was presented as an example of how reasonable parties working 

with one another could agree. There is nothing controversial about the WSOU-Microsoft Agreed 

Language, and, most of the proposed language is typical in agreed protective orders. 

I. Section Sections 5 (a) – Access by Outside Counsel 

WSOU’s proposal for sections 5(a) is identical to the WSOU-Microsoft Agreed Language. 

See 6:20-cv-454, Dkt. 71 at 4 (referencing the same section numbers). 

The proposal in Section (a) reasonably allows “outside counsel retained for purpose of this 

litigation” to review material before they appear. This would include, for example, trial counsel 

and appellate counsel. It would also cover other outside attorneys at the same firm (as counsel of 

record) who have been retained but have not yet appeared. 

Huawei’s refusal for such language is surprising – given that WSOU understood that 

Huawei wanted other Huawei counsel not of record to review protected material – as Huawei 

argued at the case management conference. As discussed during the case management conference, 

when addressing disputes such as this, Courts often had no problems with additional counsel 

reviewing protected material – providing they agreed to be bound by the protective order –

something already required by current protective order. In particular, in the EDTX, Judge Gilstrap 

ruled that confidential information could be shared with other non-appearing attorneys – providing 

the following:

“if and as soon as [IPR counsel - Finnegan] files a notice with this Court certifying 

(1) that it is or reasonably expects to be counsel of record for [Defendant] in a 

Related Proceeding as defined by the Protective Order1 and (2) that Finnegan, 

Finnegan’s attorneys, and Finnegan’s employees will strictly comply with all of 

the provisions of the Protective Order in this case and this Order.”

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Luminati Networks, Ltd. v. Bi Science, Inc. et al. Case No. 2:18-cv-483-JRG (E.D.

Tex) (Dkt. 81) (April 24, 2019). This specific case was discussed at the case management 

conference. The WSOU-Microsoft Agreed language simply reflects this reality. By the express 

provisions of the protective order, all persons accessing material pursuant thereto must be bound 

by its provisions. WSOU and Microsoft simply agreed that such outside counsel who have not 

appeared must also be “retained for purpose of this litigation.” Again, both WSOU and Microsoft 

agreed to the language now presented to correct these problems. Huawei has not explained to 

WSOU why it objects. 

II. Resolution of Disputes for Disclosed Experts– Section 5(e)

For Section 5(e), WSOU again borrowed from the WSOU-Microsoft Agreed language in 

an attempt to avoid disputes. See 6:20-cv-454, Dkt. 71 at 5 (referencing the section (e)). Huawei 

previously agreed with WSOU’s proposal here, but then later backed away in later iterations. 

The timeline for resolution is identical to the WSOU/Microsoft’s timelines (7 days before 

access, 3 days for a prompt meet and confer, and 3 days for a motion). Huawei has provided 

WSOU no reason why it believes the quick resolution schedule is inappropriate or unworkable. 

Indeed, Huawei has already stipulated to protective orders with faster timelines than those being

proposed by WSOU here. See e.g., Agis Software Development, LLC v. Huawei, Inc. et al, Case 

No. 2:17-cv-517-JRG (Lead Case)(E.D. Tex.)(Apr. 9, 2018) (“Within seven (7) days of the 

disclosure . . . the producing Party may notify the receiving Party in the writing that it objects to 

disclosure of Protective Material.”)(“If the Parties are unable to resolve any objection, the 

objecting Party may file a motion with the Court with ten (10) days of the notice . . . ”).

There should also be nothing objectionable about WSOU’s proposal that a party can 

disclose materials to a proposed expert after the time period has expired (in the last portion of 

Section 5(e)), for example, when there is no objection. Such a recitation explicitly states what is 

already understood. This in the WSOU-Microsoft Agreed language. Huawei has not explained 

why it is objectionable. 

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III. 10, Source Code Handling

Again, having already been through protective order negotiations with a sophisticated party 

(Microsoft), WSOU simply proposed the WSOU-Microsoft Agreed Language. See 6:20-cv-454, 

Dkt. 71 at 7-11 (referencing Section 10). These proposals are reasonable. 

a. Three Computers Across the Cases as Opposed to 12 computers – One for 

Each Case – Section 10(a) 

Rather than have one individual computer per case (or 12 computers), WSOU proposed to 

a reasonable three computers across cases using the WSOU-Microsoft Agreed Language. This 

set-up has worked well for the ongoing source code review in the cases between WSOU and 

Microsoft. One of the reasons this set-up works well is that it allows for redundant access to code 

for a particular case. The failure of one source code computer (which has happened many times) 

does not prevent the ability to review code for case – since a redundant computer exists. Redundant 

computer is common in cases. This is why WSOU and Microsoft reasonably agreed to them in 

the WSOU-Microsoft Agreed Language. 

There is no reason for Huawei to have 12-seprate computers and no redundancy. It is not 

only inefficient, but also guarantees that once a computer fails (as they do) that review cannot 

resume for a particualr case until a new machine is put in-place. 

b. Minimum Display Screen Size of Seventeen-Inches – Section 10(a)

There is nothing remarkable about WSOU’s requests that the display screen or monitor be 

at least seventeen inches. This prevents Huawei from providing an unreasonably small screen size 

of, for example, thirteen inches (or even smaller). Parties routinely agree to such screen sizes. 

That’s why it was included in the WSOU-Microsoft Agreed Language. Other sophisticated parties, 

namely Google, have also agreed to seventeen inches in multiple cases. See e.g., 13 Cases: Uniloc 

2017, LLC v. Google LLC, Case Nos. 2:18-cv-491-504-JRG-RSP (E.D. Tex., June 14, 2019)(Judge 

Payne). Huawei has not explained to WSOU why the monitor size being at least seventeen inches 

in size is objectionable. 

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c. Computers located at Offices of Outside Counsel in Dallas

WSOU has reasonably suggested – as parties often do – that source code be made available 

at Outside Counsel’s office. Here, Huawei’ lead counsel, Jason Cook, is the managing partner of 

the McGuire Woods’s office in Dallas. There is no reason why Mr. Cook could not arrange for 

Huawei’s source code to be reviewed in Dallas – just like Huawei has done in multiple prior cases. 

Huawei has stipulated to production of source code at the office of its outside counsel in multiple 

cases. Examples follow. 

Super Interconnect Technologies, LLC v. Huawei Device Co. Ltd, et al.1

The stand-alone computer(s) may only be located within the continental United 

States at the offices of the producing Party’s outside counsel.

Harris Corp. v. Huawei Devices USA, Inc. et al. 2

Except as provided in paragraph 10(i) below [dealing, for example with Court 

proceeding and depositions], the stand-alone computer(s) may only be located at the 

offices of the producing Party’s outside counsel in the United States. . . . Any Source 

Code made available by Defendants at the offices of their counsel shall be made 

available at Ropes & Gray LLP [counsel for Huawei], 1900 University Avenue, 6th 

Floor, East Palo Alto, CA 94303

Lemaire Illumination Technologies, LLC v. Huawei Devices USA, Inc, et al.3

Additionally, except as provided in paragraph 10(l) below, the stand-alone

computer(s) may be located only at the offices of the producing Party’s outside

counsel in Texas;

American Patents LLC v. Huawei Device USA Inc. et al. 4

Additionally, the stand-alone computer(s) may only be located at the offices of the 

producing Party’s outside counsel;

1 Case 2:18-cv-00462, Dkt. 39 (E.D. Tx.)(April 9, 2019)(entered order; the stipulation was submitted ats Dkt. 

38 on April 5, 2019). 

2 Case 2:18-cv-00439, Dkt. 53 (E.D. Tx.(April 16, 2019)(entered order; the stipulation was submitted ats Dkt. 

52 on April 12, 2019). 3 Case 2:18-cv-00353, Dkt. 37 (E.D. Tx.)(April 8, 2019)(entered order; the stipulation was submitted ats Dkt. 

36 on April 5, 2019). 4 Case 2:18-cv-00672, Dkt. 46 (E.D. Tx.)(June 5, 2019)(entered order; the stipulation was submitted ats Dkt. 

36 on February 28, 2019). 

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Uniloc 2017 LLC v. Huawei Device USA, Inc. et al 5

Additionally, the Source Code Computer may be located at the offices of the 

producing Party’s outside counsel, a third party vendor, or any other location 

mutually agreed by the parties. To the extent practicable, the Parties will reasonably 

cooperate to coordinate the location of source code review;

Huawei’s argument at the case management conference, suggesting that source-code 

production could only be made in China, is inconsistent with prior positions taken in litigation 

where Huawei stipulated to production being only made in the United States, for example, at 

outside counsel’s office. Likewise, Huawei’s suggestion that such a requirement was coming from 

the Chinese Ministry (as a state-sponsor of Huawei) is also inconsistent with other Chinese 

companies. ZTE – another Chinese-state-sponsored entity in the same space as Huawei – did not 

require source production in China. Rather, just like Huawei’s prior stipulation, ZTE’s source 

code “may only be located at the offices of the producing Party’s outside counsel or its vendors.” 

See WSOU Investments LLC v. ZTE Corporation et al, Case No. 6:20-cv-00487, Dkt. No. 83 (W.D. 

Tx.)(June 1, 2021). More particularly, ZTE declared its source code was also in Dallas. Id. at Dkt. 

47-1 (Declaration of ZTE USA representative Ray Wood at ¶12: “technical documents and source 

code are stored at the Upshaw PLLC law firm in Dallas County, Texas.”). Moreover, Huawei’s 

suggestion here is inconsistent with public statements where Huawei is “open to transfer 5G 

technology, including the source code, hardware design secrets etc. to facilitate global innovation.” 

See e.g., https://www.business-standard.com/article/international/huawei-open-to-transfer-5gtech-for-global-innovation-including-source-code-121021001775_1.html

Huawei’s position on source code location, introduced for the first time at the case 

management conference (and not in advance of the conference), appears to have purely been 

manufactured for purpose of increasing costs on WSOU. Huawei has presented no evidence as to 

why a requirement should be imposed in this case that Huawei did not even request in other cases. 

5 Case 2:18-cv-00509, Dkt. 30 (E.D. Tx.)(April 9, 2019)(entered order; the stipulation was submitted ats Dkt. 

29 on April 8, 2019). 

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WSOU has not found a single protective order where Huawei ever pushed for production of its 

code in China. Rather, again, Huawei stipulated to production at its outside counsel’s office. If 

Huawei applied the same approach here, that location would be Dallas – the office of its Huawei’s 

lead attorney. 

If Huawei’s inconsistent position here were not enough, Huawei’s proposed language also 

requires inspection of code in China – even it is already in the U.S. For example, Huawei has 

already made its source code available in multiple case in the U.S. It’s already here. However, 

Huawei’s proposed language allows Huawei to only make such code available in China if it also 

resides in China. This is the express scenario discussed at the case management conference. If the 

code is already here, there is no reason to require travel to China to review. 

Huawei likewise does not explain how its own engineers located in the United States are 

allowed to view and edit source code at its research facilities located here. 

d. The Number of Pages of Source Code Printout – Section 10(d) 

The Court’s standard protective order does not include a default number of printouts for 

Source Code. To avoid a dispute down the road as to whether a requested amount is reasonable, 

WSOU proposed the amount ordered by the Court in resolving one of the few disputes between 

WSOU and Microsoft – 1,000 pages for each software release. See 6:20-cv-454, Dkt. 71 at 10. 

WSOU believes the Court’s resolution of such a dispute between WSOU and Microsoft is, also, 

appropriate for the cases between WSOU and Huawei. 

e. The Wait Period for Source Code Printouts – Section 10(d) and 10(g)

Huawei has inserted an unreasonable request for three (3) business days for source code 

printouts. In source-code review, it is common for a source code review to make PDF on the 

source code review computer to designate a print request. Under Huawei’s proposal, if WSOU 

make such a PDF (for printing) on Thursday, WSOU must wait until Tuesday of the next week to 

receive a printed copy of that PDF. And, likewise, if Huawei objects to that PDF being printed, 

Huawei’s proposal kicks Court intervention until another waiting period of three (3) business day 

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for a meet and confer – further delaying the printout being received. In sum, an objection by 

Huawei will unreasonably delay print request being received by more than a week. 

WSOU’s proposal more reasonably allows a business day to printout the PDF and another 

day to meet and confer if there is a dispute. The idea here is that a source code reviewer can request 

a printout and come back the next day to obtain the actual copy. Source code review is a sensitive 

process whereby reviewers cannot be expected to wait more than a week to obtain printouts. 

Huawei’s problems are even more exacerbated when combined with the requirement for travel to 

China. 

IV. Who Can Access Designated Material – Section 15

Section 15 deals with individual that can access Designated Material. WSOU proposes 

adopting verbatim the Court’s language from the sample protective order, which includes the 

following people: “a current or former officer, director or employee of the producing Party or a

current or former officer, director, or employee of a company affiliated with the producing Party.” 

Huawei seeks to remove the above-highlighted individuals as well as former employees. Such a 

removal will severely complicate the case with Huawei productions – since there are multiple 

affiliated Huawei companies. Huawei has no legitimate reason to complicate the case – other than 

drive up costs. 

V. Confidentiality Obligations – Section 22

Section 22 deals with a triggering event for the destruction of DESIGNATED 

MATERIAL. Huawei proposes removing a dismissal of the case without prejudice from the 

triggering event. Thus, should a dismissal without prejudice occur (for whatever reason), neither 

party would automatically be required to destroy DESIGNATE MATERIAL. Rather, Huawei’s 

proposal allows either party to indefinitely keep DESIGNATE MATERIAL following a dismissal 

without prejudice. WSOU respectively submits that such an approach is non-sensical. 

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Huawei Defendants’ Position

Defendants respectfully request that the Court enter the disputed Protective Order (attached 

as Appendix A), including Defendants’ proposals (shown in blue), and reject Plaintiff WSOU’s 

proposals (shown in yellow). As will be shown below, the majority of the disputes between WSOU 

and Defendants have already been addressed by the Court in WSOU Investments, LLC D/B/A 

Brazos Licensing and Development v. ZTE Corporation, et al., Civil Action Nos. 6:20-cv-00487-

ADA through -00497-ADA (collectively, “the ZTE litigations”). While the Court rejected all of 

WSOU’s proposals in the ZTE litigations, WSOU inexplicably makes many of the same proposals 

here. For the same reasons as in the ZTE litigations, WSOU’s proposals should be rejected by the 

Court, and Defendants’ proposals (which generally mirror the language from the Court’s Sample 

Protective Order for Patent Cases (“Sample Order”)) should be adopted by the Court.

1. WSOU’s Proposed Changes to Section 5(a): Scope of “Outside Counsel”

While Defendants contend that “CONFIDENTIAL” material under Section 5(a) of the 

disputed Protective Order should only be disclosed to “Outside counsel of record in this Action 

for the Parties,” which is the language from the Court’s Sample Order, WSOU seeks to expand 

that disclosure to include the additional category of “outside counsel retained for the purpose of 

this litigation.” Appendix A (“Appx.”) at ¶ 5(a). Yet the inclusion of this overly broad and 

impermissibly vague language was already rejected by the Court in the ZTE litigations. Compare

Civil Action No. 6:20-cv-00487-ADA, Dkt. 74-1 at ¶ 5(a) with Dkt. 83, at ¶ 5(a). For the same 

reasons, the Court should reject the inclusion of this problematic language in the disputed 

Protective Order in these cases.

Specifically, and as correctly noted by the defendants in the ZTE litigations, “[t]he plain 

language of WSOU’s deviations create unnecessary ambiguities (at best), and unwarranted 

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disclosure expansions (at worst).” See, e.g., Civil Action No. 6:20-cv-00487-ADA, Dkt. 74, at 15. 

As one example, WSOU’s inclusion does not limit disclosure of confidential material to counsel 

retained by the Parties. Such language could thus allow unidentified entities who have an interest 

in WSOU or in these litigation to have access to Defendants’ confidential material. As another 

example, WSOU’s inclusion allows disclosure of confidential material to counsel “retained for the 

purpose of this litigation.” Appx. A at ¶ 5(a). This language, divorced from the requirement from

the Court’s Sample Order that outside counsel be “of record in this Action,” would again allow 

unidentified counsel retained by WSOU “for the purpose of this litigation” to have access to 

Defendants’ confidential material.

In light of these exemplary “disclosure expansions,” and as the Court has already rejected 

WSOU’s proposed deviation from the Court’s Sample Order, Defendants request that the Court 

again reject WSOU’s improper revision to Section 5(a) of the disputed Protective Order.

2. WSOU’s Proposed Changes to Section 5(e): Outside Consultant Dispute and Notice

While Defendants contend that the time periods relating to the disclosure of confidential 

material to outside consultants/experts as set forth in the Court’s Sample Order are appropriate for 

the Protective Order in this case, WSOU again proposes to alter the Court’s Sample Order and to 

introduce a contradictory provision allowing disclosure of confidential information even before an 

objection is resolved. As with WSOU’s proposed revisions to Section 5(a) above, however, 

WSOU’s proposed revisions to Section 5(e) of the Court’s Sample Order have already been 

rejected by the Court in the ZTE litigations (compare Civil Action No. 6:20-cv-00487-ADA, Dkt. 

74-1, at ¶ 5(e) with Dkt. 83, at ¶ 5(e)). Those revisions should likewise be rejected here. 

There is no basis to shorten the time periods by which the parties can vet the curriculum 

vitae of the opposing party’s consultants/experts before the confidential material of the disclosing 

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party is provided to those consultants/experts. There is likewise no basis to require the parties to 

request a hearing when and if a party files a motion with the Court objecting to the opposing party’s 

consultants/experts. More problematic, however, is WSOU’s inclusion of the final statement that 

indicates that no disclosure of confidential materials shall be made to an opposing party’s 

consultant/expert until all objections are resolved “or expiration of the 7-day period if no motion 

is filed.” Appx. A at ¶ 5(e). 

This addition by WSOU conflicts with the agreed portions of Section 5(e), as the objecting 

party is not required to file a motion within the 7-day period (as proposed by WSOU; 10 days as 

set forth in the Court’s Sample Order and as proposed by Defendants). Rather, the objecting party 

is merely required “to object and notify the receiving Party in writing that it objects to disclosure 

of Protected Material to the consultant or expert” (Id.), after which time the parties must meet and 

confer to try and resolve the objection. If the parties are unable to resolve the objection, only then 

is the objecting party required to file a motion with the Court. As such, WSOU’s inclusion above 

conflicts with the agreed language of Section 5(e) from the disputed Protective Order and would 

allow disclosure of the objecting party’s confidential material before the objection is resolved.6

 

For these reasons, as well as fact that the Court has already rejected WSOU’s proposed 

deviation from the Court’s Sample Order, Defendants request that the Court again reject WSOU’s 

unsupported and contradictory edits and additions to Section 5(e) of the disputed Protective Order.

6 Notably, counsel for Defendants pointed out this contradictory issue to counsel for WSOU 

during the parties’ back-and-forth correspondence on the disputed Protective Order. However, 

counsel for WSOU never responded to this problem with WSOU’s proposed deviation from the 

Court’s Sample Order.

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3. WSOU’s Proposed Changes to Section 10(a): Source Code Review Computers

WSOU again seeks to add additional and unnecessary requirements to the Court’s Sample 

Order relating to the review of (what will be exclusively) Defendants’ source code. Specifically, 

WSOU seeks to add the requirement that Defendants provide “three secure review computers” and 

that the “Source Code production applicable to each of the [twelve] above-captioned cases [be] 

accessible from each review computer.” Appx. A at ¶ 10(a). Additionally, WSOU seeks to add a 

requirement that “[a] display screen or monitor of a size of at least seventeen inches shall be 

provided by the producing Party for each review computer.” Id.

As with WSOU’s other unnecessary/problematic revisions and additions addressed above, 

the Court has already reviewed and rejected these specific additions to the Court’s Sample Order 

in the ZTE litigations. Compare Civil Action No. 6:20-cv-00487-ADA, Dkt. 74-1, at ¶ 11(a) with

Dkt. 83, at ¶ 11(a). The Court should do the same here, as there is no reason unique to these 

litigations to depart from the Court’s Sample Order to add the overly burdensome requirements 

that WSOU seeks to include.

4. WSOU’s Proposed Changes to Section 10(a): Source Code Review Location

As before, WSOU seeks to add additional requirements to the disputed Protective Order in 

these cases that are not present in the Court’s Sample Order and that have already been rejected 

by the Court in the ZTE litigations. As if that were not enough, WSOU is further attempting to 

circumvent the Court’s previous order from the Case Management Conference between the parties 

on this very issue. 

Specifically, with regard to WSOU’s proposed requirement that “[t]he Source Code 

Computers will permit review of the source code in the Dallas office of McGuireWoods, or as 

otherwise agreed” (Appx. A at ¶ 10(a)), counsel for Defendants already raised the issue of where 

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source code that resides only in China will be produced during the Case Management Conference, 

as follows:

One thing I do want to note with regard to source code. I think it’s much easier on 

the Chinese Ministry hurdles with regard to source code if the Chinese Huawei 

defendant in each case be required to produce source code if necessary if we can 

produce that in Hong Kong and make that available for inspection. There are a lot 

of hurdles to bring that into the United States. Huawei – the Chinese Huawei 

defendants are not a plaintiff in this case, Your Honor. They are a defendant. And 

my understanding on the case law in those circumstances is that the plaintiff needs 

to go to defendant’s location where the source code is.

10/16/20 Tr., at 13:4-14. The Court responded, stating “I will tell the plaintiff that if the Chinese 

entities are willing to make the source code available by the plaintiff’s counsel going to Hong 

Kong and that’s all it takes, they need to take that deal and run with it because I’m dealing with 

this in other matters where the Chinese Ministry has refused to even allow that to happen for other 

reasons. But I’m – but now having said that, let me hear from – let me hear from the plaintiff.” 

Id. at 13:17-24 (emphasis added). 

WSOU’s counsel replied, “[w]ell, I guess what I would say about that is if that’s the best 

we can get, then I guess that’s what we’re going to have to deal with. I haven’t run into that 

before, but I haven’t had Huawei as a defendant before. If that’s your experience, Your Honor, 

yeah.” Id. at 13:25—14:4 (emphasis added). The Court continued, holding:

And so if [Defendants’ counsel] has made what they – I think is a generous offer 

that the source code in all 12 cases will be produced on the basis – under the only 

requirement that it be produced in Hong Kong – I know that I had many cases 

involving Chinese defendants and/or Chinese witnesses where I had to go to Hong 

Kong or Macau to take the depositions. So I understand what’s going on. And 

[Defendants’ counsel], I want to thank you for working that deal out and making 

that happen, and I think that’s a very – in this situation I think that’s a very good 

compromise. And I will – I will say that that’s where I will ask the defendant[s]

to produce the source code. 

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Id., at 14:18-22 (emphasis added).

7

 

Despite that the fact that this issue was specifically addressed and resolved by the Court at 

the outset of these cases nearly a year ago, WSOU ignores the Court’s order and attempts to include 

a provision that is directly contrary to the Court’s directive above. As this is a settled issue, the 

Court should reject WSOU’s additional requirement that is not only inconsistent with the Court’s 

Sample Order, but also contrary to the Court’s order above.

As to the other language that WSOU attempts to add into this Section relating to a “public 

health or other emergency,” that language was again proposed by WSOU in the ZTE litigations 

and was already rejected by the Court. Compare Civil Action No. 6:20-cv-00487-ADA, Dkt. 74-

1, at ¶ 11(a) with Dkt. 83, at ¶ 11(a). The Court should do the same here. While Defendants are 

not opposed to similar pandemic-related language, and indeed offered to include such additional 

language in this Section (while still recognizing the Court’s order on the production of Huawei’s 

China-based source code in Hong Kong) (see Appx. A at ¶ 10(a)), WSOU refused Defendants’ 

attempted compromise – no doubt to try and circumvent the Court’s previous order from the Case 

Management Conference. 

Defendants’ proposal tracks the Court’s previous order on the production of source code, 

and only indicates that the parties will work to devise an alternative solution if travel from the U.S. 

to Hong Kong is prohibited. However, should the Court not wish to add any language in the 

disputed Protective Order related to the COVID-19 pandemic, Defendants request that the Court 

7 In further affirming its order, the Court clarified that its order would apply only to 

Defendants’ source code that was located in China, and not source code that was in the possession

of Defendants’ U.S.-based entities. See id. at 14:24—15:16.

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adopt Section 10(a) of the disputed Protective Order as proposed by Defendants, excluding 

Defendants’ proposed inclusion relating to the pandemic.8

 

5. The Parties’ Proposed Changes to Section 10(d): Source Code Printouts

The parties are generally in agreement that there should be some initial limitation on the 

number of pages of source code that can be printed by the reviewing party (which, in this case, 

will be WSOU). Not surprisingly, WSOU urges an extremely high number – 1000 pages per 

software release – with no restriction on the number of consecutive pages that can be printed. As 

such, under WSOU’s proposal, WSOU can request a production of 1000 consecutive pages of 

Defendants’ source code from every software release – and can then request additional source code 

printouts from Defendants, which, pursuant to the agreed language from the disputed Protective 

Order, will “not be unreasonably denied.” Appx. A at ¶ 10(d).9

Given that the agreed portion of the disputed Protective Order provides that WSOU can 

seek to print additional pages beyond either party’s proposed limits, Defendants contend that a 

lower initial limit (i.e., 500 pages) is the more appropriate vehicle to protect Defendants’ sensitive 

and valuable source code. Moreover, a consecutive-page limitation is also necessary to prevent 

WSOU from printing large blocks of Defendants’ source code, which, if inadvertently disclosed 

outside of these litigations, would cause significant damage to Defendants. As WSOU has not yet 

reviewed Defendants’ source code, any argument that it requires (at a minimum) 1000 pages per 

8 Defendants likewise request that the Court adopt Defendants’ addition to Section 10(b) in 

the disputed Protective Order, which simply tracks the language from the Court’s Sample Order 

(in Section 11(a)), requiring that “the stand-alone computer(s) may only be located at the offices 

of the producing Party’s outside counsel or its vendors.” (emphasis added).

9 Notably, WSOU’s 1000-page proposal was already rejected by the Court in the ZTE 

litigations. Compare Civil Action No. 6:20-cv-00487-ADA, Dkt. 74-1, at ¶ 11(h) with Dkt. 83, at 

¶ 11(h). 

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software release is pure speculation, and is offset by the agreed language allowing WSOU to 

request more printed pages should the unique situation arise.

As to the second dispute between the parties regarding the production of source code, and 

specifically WSOU’s proposal that “the Parties shall meet and confer in good faith within one (1) 

business day of the objection” to WSOU’s request for printed pages of Defendants’ source code 

(see Appx. A at ¶ 10(d)), such a proposal is not reasonable, specifically given the Court’s previous 

order that any production of Defendants’ source code will occur in Hong Kong. Given the 

demands of counsel (on this and other matters), requiring a meet and confer in one business day 

after an objection by Defendants is made to the scope of any print request by WSOU (which, 

according to WSOU’s proposal, must further be made “at the time of inspection”) is not practical, 

and could conceivably put both parties in jeopardy of violating such an order if the appropriate 

counsel are not available one business day after an objection is raised.

Defendants’ proposal, to the contrary, allows the parties a reasonable amount of time (i.e., 

“three (3) business days”) to meet and confer after an objection is made. Defendants’ proposal 

also sets forth a specific schedule regarding when (in this instance) Defendants must object to a 

print request by WSOU (which, as noted above, will be made in Hong Kong), and a specific 

schedule setting forth when, after the meet and confer occurs, WSOU must go to the Court for 

resolution of the objection. See Appx. A at ¶ 10(d) (setting all deadlines at “three (3) business 

days”). Defendants have previously employed similar schedules in numerous cases in the Eastern 

District of Texas, and the protocols have worked well. See e.g., Case No. 2:18-cv-00073-JRGRSP, Dkt. 29, ¶ 10(h); and Case No. 2:17-cv-00746-JRG-RSP, Dkt. 40 ¶ 10(h). As such, 

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Defendants request that the Court reject WSOU’s proposed inclusions to Section 10(d), and instead 

accept those proposed by Defendants.10

6. Defendants’ Proposed Change to Section 14: Use of Designated Materials at 

Depositions of Former Employees

Defendants contend that confidential information of a producing party should not be shown 

to former (non-officer or director) employees of the producing party during a deposition of that 

former employee. As the disputed Protective Order currently reads (and as proposed by WSOU), 

confidential information of a producing party can be shown to any former employee of the 

producing party, regardless of whether that former employee authored or was an addressee or copy 

recipient of such information, or whether that former employ ever had access to such information 

in the normal course of the former employee’s employment. Defendants contend that such 

disclosure can serve no legitimate purpose, and thus the threat of inadvertent disclosure of such 

confidential information by the former employee outweighs any benefit to the receiving party. 

To be clear, Defendants do not object to such confidential information being shown to a 

former employee that authored or was an addressee or copy recipient of such information, or that 

had access to such information in the normal course of the former employee’s job responsibilities. 

Defendants further do not object to such confidential information being shown to a former officer 

or director of the producing party, given those individuals’ (former) high levels of position and 

responsibility within the producing party. However, a former, non-officer/director employee who 

has no relation to a producing party’s confidential information should not, without more, be shown 

such confidential information during a deposition.

10 The parties’ dispute in Section 10(g) of the disputed Protective Order relates back to the 

dispute set forth above with regard to Section 10(d), and should be resolved by the Court consistent 

with the resolution of the parties’ dispute regarding Section 10(d).

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Defendants further contend that confidential information of a producing party should not 

be shown to “a current or former officer, director or employee of a company affiliated with the 

producing Party” (Appx. A at ¶ 14), without that individual qualifying for access under one of the 

other categories delineated in Section 14 of the disputed Protective Order. As an initial matter, the 

phrase “company affiliated with the producing Party” is undefined, and is subject to multiple 

interpretations. Moreover, there may be business reasons why a current or (especially) former 

officer/director/employee of an “affiliate” should not be privy to confidential information of the 

producing party during a deposition. As such, Defendants contend that such individuals must 

qualify for access to such confidential information pursuant to another category set forth in Section 

14 before being shown such information during a deposition.

Accordingly, Defendants’ request that the Court adopt Defendants’ proposed revisions to 

Section 14 as set forth in the disputed Protective Order.

7. Defendants’ Proposed Change to Section 22: Destruction of Designated Material 

Following a Dismissal Without Prejudice

Defendants contend that a “Final disposition,” which triggers the requirement to destroy 

“all DESIGNATED MATERIAL, including all copies, duplicates, abstracts, indexes, summaries, 

descriptions, and excerpts or extracts thereof” (Appx. A at ¶ 22), should not include dismissals 

“without prejudice,” as proposed by WSOU, as such dismissal are not truly “final.” Any such 

claims that are dismissed without prejudice can be brought again, such that the receiving party 

should be allowed to keep the categories of information delineated above until the case is dismissed 

with prejudice, and/or the issuance of a “final judgment herein after the completion and exhaustion 

of all appeals, rehearings, remands, trials, or reviews of this Action.” Id.

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Accordingly, Defendants’ request that the Court adopt Defendants’ proposed revisions to 

Section 22 as set forth in the disputed Protective Order.

DATED: July 30, 2021 Respectfully submitted,

/s/ Ryan Loveless

Mark D. Siegmund

State Bar No. 24117055

mark@waltfairpllc.com

Law Firm of Walt, Fair PLLC.

1508 North Valley Mills Drive 

Waco, Texas 76710

Telephone: (254) 772-6400

Facsimile: (254) 772-6432

James L. Etheridge

Texas State Bar No. 24059147

Ryan S. Loveless

Texas State Bar No. 24036997

Travis L. Richins

Texas State Bar No. 24061296

Brett A. Mangrum

Texas State Bar No. 24065671

Jeffrey Huang

ETHERIDGE LAW GROUP, PLLC

2600 E. Southlake Blvd., Suite 120 / 324

Southlake, Texas 76092

Telephone: (817) 470-7249

Facsimile: (817) 887-5950

Jim@EtheridgeLaw.com

Ryan@EtheridgeLaw.com

Travis@EtheridgeLaw.com

Brett@EtheridgeLaw.com

JeffH@EtheridgeLaw.com

Counsel for Plaintiff WSOU Investments, LLC

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DATED: July 30, 2021 Respectfully submitted,

/s/ Jason W. Cook

Jason W. Cook

Texas Bar No. 24028537 

Shaun W. Hassett

Texas Bar No. 24074372

McGuireWoods LLP

2000 McKinney Avenue, Suite 1400

Dallas, TX 75201

Telephone: (214) 932-6400 

jcook@mcguirewoods.com

shassett@mcguirewoods.com

Tyler T. VanHoutan

Texas Bar No. 24033290 

McGuireWoods LLP 600 

Travis St., Suite 7500

Houston, TX 77002

Telephone: (713) 571-9191 

tvanhoutan@mcguirewoods.com

J. Mark Mann

Texas Bar No. 12926150

G. Blake Thompson Texas 

Bar No. 24042033

MANN | TINDEL | THOMPSON

300 West Main Street 

Henderson, Texas 75652

Telephone: (903) 657-8540 

mark@themannfirm.com

blake@themannfirm.com

Counsel for Defendants Huawei Technologies Co., 

Ltd., Huawei Technologies USA, Inc., Huawei 

Device Co. Ltd. (f/k/a Huawei Device (Dongguan) 

Co.), Huawei Device (Shenzhen) Co., Ltd. (f/k/a 

Huawei Device Co. Ltd.) and Huawei Device USA

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