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.

GOOGLE LLC,

Defendant.

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CIVIL ACTION 6:20-CV-00571-ADA 

CIVIL ACTION 6:20-CV-00572-ADA

CIVIL ACTION 6:20-CV-00573-ADA

CIVIL ACTION 6:20-CV-00575-ADA

CIVIL ACTION 6:20-CV-00576-ADA

CIVIL ACTION 6:20-CV-00579-ADA

CIVIL ACTION 6:20-CV-00580-ADA

CIVIL ACTION 6:20-CV-00583-ADA

CIVIL ACTION 6:20-CV-00584-ADA

CIVIL ACTION 6:20-CV-00585-ADA

JURY TRIAL DEMANDED

DEFENDANT GOOGLE’S RESPONSE TO PLAINTIFF WSOU’S OPPOSED MOTION

TO MODIFY THE PROTECTIVE ORDER

Case 6:20-cv-00571-ADA Document 54 Filed 09/24/21 Page 1 of 7
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WSOU Investments, LLC d/b/a Brazos License and Development’s (“WSOU”) Opposed 

Motion to Modify the Protective Order should be summarily denied. Every point WSOU raises in 

its motion was examined and decided by this Court when it entered the protective order just last 

week. WSOU carefully does not call this motion one for reconsideration, because it cannot meet 

the high standard. And WSOU utterly failed to meet and confer with Google LLC’s (“Google”) 

counsel before filing the motion as required under Local Rule CV-7(g); in fact, Google first 

learned of WSOU’s motion via CM/ECF when WSOU filed it, and WSOU’s certificate of 

conference is at best outright misleading. Google requests that the Court deny WSOU’s motion. 

First, WSOU’s motion should be denied under Local Rule CV-7(g), which provides that a 

court “may refuse to hear or may deny a nondispositive motion unless the movant advises the court 

. . . that counsel for the parties have first conferred in a good-faith attempt to resolve the matter by 

agreement and, further, certifies the specific reason that no agreement could be made.” “The ‘good 

faith’ requirement ‘mandates a genuine attempt to resolve the dispute through non-judicial means’ 

and the ‘conferment’ requirement requires two-way communication which is necessary to 

genuinely discuss any issues and to avoid judicial recourse.” Diaz v. Cuatro T Constr., Inc., No. 

SA-20-CV-00231-OLG, 2021 WL 2709681, at *1 n.1 (W.D. Tex. Mar. 19, 2021) (Garcia, C.J.).

WSOU contends that it conferred with Google on this motion “by email on September 2, 

2021” and that Google “is opposed to the relief sought in this motion.” (Dkt. 53 at 9 (emphasis 

added).)1

 But that was the day the parties filed their Joint Motion for Entry of Disputed Protective 

Order (Dkt. 49); the Protective Order that WSOU’s current motion seeks to modify was entered 

on September 17 (Dkt. 53). WSOU’s assertion that it conferred with Google about this motion 

 1 For ease of reference, Google cites to the docket entries in Civil Action 6:20-CV-00571 and the 

pagination generated by CM/ECF. 

Case 6:20-cv-00571-ADA Document 54 Filed 09/24/21 Page 2 of 7
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before entry of the protective order which WSOU seeks to modify is, to put it mildly, untrue and 

flouts the Local Rule CV-7(g) and the authority of this Court. The Court should summarily deny 

WSOU’s motion on that basis alone.

Second, WSOU improperly attempts to move for reconsideration of the protective order 

without meeting the legal standard for such a motion. “To prevail on a motion for reconsideration, 

a party must ‘clearly establish either a manifest error of law or fact or must present newly 

discovered evidence.’” Bluebonnet Telecommunications, LLC v. Sony Ericsson Mobile Commc’ns 

(USA) Inc., No. 2:13-CV-00505-JRG, 2014 WL 12616685, at *1 (E.D. Tex. Apr. 8, 2014) 

(Gilstrap, J.) (quoting Ross v. Marshall, 426 F.3d 745 (5th Cir. 2005)). Motions for 

reconsideration “cannot be used to raise arguments which could, and should, have been made 

before the judgment issues.” Id. That is exactly what WSOU has done in this motion. In fact, the 

parties met and conferred extensively on the Protective Order before jointly submitting their 

disputes to the Court. Every single argument raised in WSOU’s motion either was raised or 

could and should have been raised in the Joint Motion for Entry of Disputed Protective Order. 

As to Section 13 of the Protective Order, WSOU complains about the restriction not to take 

protective material outside of the United States because one of their experts resides in Canada. 

But WSOU does not explain why it makes that claim for the first time now, after the parties 

submitted their disputes to the Court, nor does it explain why the specific location of ex-US 

reviewers matters; what matters is that they are not in the US, because the restriction imposed by 

the protective order is based on jurisdiction over the protected materials and individuals who have 

access over that materials since this Court cannot enforce the protective order outside its 

Case 6:20-cv-00571-ADA Document 54 Filed 09/24/21 Page 3 of 7
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jurisdictional reach. As to Sections 10(a)2 and 10(o), WSOU merely rehashes the same arguments 

considered, and correctly rejected, by this Court in ruling on the Joint Motion for Entry of Disputed 

Protective Order. 

There are no new changes in circumstances, or good cause to request reconsideration based 

on the same arguments that this Court has already examined. WSOU’s motion should be rejected. 

WSOU is simply displeased with this Court’s decision as to the Protective Order and wants a 

mulligan. But that is not a proper basis for reconsideration, nor to burden this Court’s busy docket 

with unnecessarily adjudicating issues for a second time.

Third, WSOU’s improper motion for reconsideration is an attempt to prolong fact 

discovery. Despite the fact that source code has been available for months for inspection in Dallas, 

WSOU has not bothered to do any review. With only four weeks left in fact discovery, WSOU is 

now woefully behind schedule. WSOU’s objective in this motion is transparent: Contrive delay 

to overcome its failings in diligence.

WSOU and Google submitted their disputes on the Protective Order to the Court exactly 

as requested by the Court. The Court decided all of the issues before it, and just last week entered 

a Protective Order reflecting its rulings. WSOU seems to suggest that the Court should have heard 

argument. Yet, at the discovery conference held just last week, the Court expressly invited the 

parties to let it know if there were other issues that should be addressed. Google raised the pending 

Protective Order, and WSOU agreed it should be decided, not asking to be heard beyond the 

parties’ joint submission.

 2 WSOU, for the first time, makes an alternative request to review highly confidential source 

code by remote means in Austin. This request not only could have been made at the time of the 

joint filing for entry of the disputed protective order, but obviously eviscerates all of the 

protections put in place with respect to a secure location with stand-alone computers for source 

code review. 

Case 6:20-cv-00571-ADA Document 54 Filed 09/24/21 Page 4 of 7
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The Court correctly decided the three issues in WSOU’s motion. WSOU does not seek to 

“modify” those portions of the entered Protective Order, it seeks reversal of the Court’s previous 

ruling. The Protective Order entered by the Court should be enforced. Google respectfully 

requests that the Court deny WSOU’s improper and misleading motion for reconsideration of the 

Protective Order. 

Case 6:20-cv-00571-ADA Document 54 Filed 09/24/21 Page 5 of 7
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Date: September 24, 2021 Respectfully submitted,

/s/ Tharan Gregory Lanier with permission by 

Michael E. Jones

Tharan Gregory Lanier (pro hac vice)

Jones Day

1755 Embarcadero Road

Palo Alto, California, 94303

+1 (650) 739-3939

+1 (650) 739-3900 facsimile

tglanier@jonesday.com 

Michael E. Jones (Texas Bar No. 10929400)

Patrick C. Clutter (Texas Bar No. 24036374)

Potter Minton, P.C.

110 North College, Suite 500

Tyler, Texas, 75702

+1 (903) 597-8311

+1 (903) 593-0846 facsimile

mikejones@potterminton.com

patrickclutter@potterminton.com

Matthew S. Warren (California Bar No. 

230565)

Jennifer A. Kash (California Bar No. 203679) 

(pro hac vice)

Erika Warren (California Bar No. 295570)

Warren Lex LLP

2261 Market Street, No. 606

San Francisco, California, 94114

+1 (415) 895-2940

+1 (415) 895-2964 facsimile

20-580@cases.warrenlex.com

Sasha Mayergoyz

Jones Day

77 W. Wacker Drive

Chicago, IL 60601

+1 (312) 782-3939

smayergoyz@jonesday.com

Tracy A. Stitt

Edwin O. Garcia

Jones Day

51 Louisiana Avenue NW

Washington, DC 20001

+1 (202) 879-3641

Case 6:20-cv-00571-ADA Document 54 Filed 09/24/21 Page 6 of 7
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tastitt@jonesday.com

edwingarcia@jonesday.com

Michael A. Lavine

Jones Day

555 California Street

26th Floor

San Francisco, California 94104

+1 (415) 626-3939

mlavine@jonesday.com

Attorneys for Defendant Google LLC

Case 6:20-cv-00571-ADA Document 54 Filed 09/24/21 Page 7 of 7