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

OPPOSED MOTION TO MODIFY THE PROTECTIVE ORDER

On September 2, 2021, the parties filed a Joint Motion for Entry of Disputed Protective 

Order. See -571 Dkt. 49. The motion presented nine disputed issues for the Court’s consideration. 

Id. The Court entered a protective order on September 17, 2021. See -571 Dkt. 52. Plaintiff WSOU 

Investments, LLC (“WSOU”) respectfully requests that the Court modify the following provisions 

of the Protective Order: 

• Section 13: Taking Protected Material Outside of the United States

• Section 10(o): Methods of Transporting Source Code

• Section 10(a): Location of Source Code Computers

As background, counsel for WSOU was involved for years with litigation against Google

in numerous (20+) EDTX cases. The parties hammered out a protective order there and 

successfully worked through any issues that arose. In the present cases, each of WSOU’s proposals

were based on either: (1) language WSOU and Google agreed to in EDTX and that served the 

parties well through all of the prior litigation; or (2) the WDTX default order. Further, the WDTX 

default order was relied upon in the current Microsoft litigations (12 cases) by both parties to 

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permit all the source code to be reviewed, document productions, and numerous depositions. 

However, in these matters, Google took the opposite position, denying WSOU any access to the 

source code for review under the WDTX default protective order, and instead demanding WSOU 

agree to its proposed Protective Order, including numerous restrictions later denied by the court.

Now the Court has entered a protective order (without a hearing) that, as currently written, is very 

burdensome and unnecessarily expensive to WSOU and its experts and will result in substantial 

delay in discovery, as discussed below.

A. Section 13: Taking Protected Material Outside of the United States

WSOU has testifying experts located in Canada. Section 13 of the Protective Order 

contains the following language, which was proposed by Google and opposed by WSOU, that 

makes it extremely burdensome and all but denies WSOU’s Canadian expert’s access to protected 

material: 

No Protected Material may leave the territorial boundaries of the United States of 

America. Without limitation, this prohibition extends to Protected Material 

(including copies) in physical and electronic form. The viewing of Protected 

Material through electronic means outside the territorial limits of the United States 

of America is similarly prohibited. Notwithstanding this prohibition, Protected 

Material, exclusive of material designated RESTRICTED CONFIDENTIAL ‐ 

SOURCE CODE, and to the extent otherwise permitted by law, may be taken 

outside the territorial limits of the United States if it is reasonably necessary for a 

deposition taken in a foreign country. The restrictions contained within this 

paragraph may be amended through the consent of the Producing Party to the extent 

that such agreed to procedures conform with applicable export control laws and 

regulation. 

Given that WSOU has Canadian experts, this provision is highly prejudicial to WSOU. WSOU 

requests that the Protective Order be modified to strike all the language in the block quote above

from Section 13. 

This provision is also extremely impractical given the realities of modern travel. By 

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prohibiting the “viewing of Protected Material through electronic means outside the territorial 

limits of the United States of America,” the provision prohibits counsel of record and designated 

experts in these cases from consulting together and viewing protected material on electronic 

devices from their respective offices and requires the experts to travel across the border into the

United States to consult with counsel and consultants for WSOU. 

Google mistakenly argues this provision is necessary to ensure protected material stays 

within the jurisdiction of this Court. -571 Dkt. 49 at 32. This argument should be rejected because, 

even without this provision, the only people who are authorized to view protected material (the 

parties and their employees, counsel, and experts or litigation support services who have signed 

Appendix A) are already subject to the power of this Court. Designated experts, including 

WSOU’s Canadian experts, must sign the Acknowledgment & Agreement to be Bound by 

Protective Order, which expressly states “I hereby submit to the jurisdiction of this Court for the 

purpose of enforcement of the Protective Order in this Action.” -571 Dkt. 52 at 22-23. 

Further, the provision is ineffective at solving the alleged jurisdictional problem Google 

hopes to solve. The Protective Oder authorizes access of protected materials only by individuals 

who are already subject to this Court’s jurisdiction (or who sign Appendix A expressly subjecting 

themselves to this Court’s jurisdiction). The jurisdictional concern raised by Google can only 

occur if a party first violates other provisions of the Protective Order. In the Versata Software case 

cited by Google, for example, protected material fell into the hands of a vendor outside the 

jurisdiction of the court because Versata’s counsel violated other provisions of the Protective 

Order. A provision prohibiting materials from leaving the United States would not have stopped 

Versata’s counsel from violating the Protective Order any better than the existing provisions of 

that protective order did. And it would not have changed the fact that the outside vendor had not 

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subjected itself to the jurisdiction of the court. Nevertheless, the Court was still not powerless and 

chose to sanction counsel responsible for the violation. Versata Software Inc. v. SAP Am., Inc., 

2:07-CV-153 CE, 2011 WL 4017944, at *7 (E.D. Tex. Sept. 9, 2011), aff'd in part, vacated in 

part, remanded, 717 F.3d 1255 (Fed. Cir. 2013) (sanctioning Versata for violating the protective 

order).

Here, even absent the provision above, WSOU cannot disclose protected material to any person 

who does not first subject themself to the jurisdiction of this Court. Further, if either party violates 

the Protective Order by sending protected material to an unauthorized person outside the United 

States, the provision above does nothing to make that unauthorized person subject to this Court’s 

jurisdiction. The provision is burdensome, prejudicial to WSOU, and ineffective at mitigating the 

risk of unauthorized disclosure. WSOU requests that the Protective Order be modified to strike all 

the language in the block quote above from Section 13.

B. Section 10(o): Methods of Transporting Source Code

WSOU requests that Section 10(o) be modified as follows: 

A Producing Party’s Source Code Material may only be transported by the 

Receiving Party at the direction of a person authorized under paragraph 10(f) above 

to another person authorized under paragraph 10(f) above, and on paper via hand 

carry (including via a hand carry courier service), or [Federal Express, or other 

similarly reliable courier].

The added language in red comes from the Court’s default protective order, which is also the same 

protective order language used in the 12 cases between WSOU and Microsoft,

1 12 cases between 

1

WSOU Investments, LLC. v. Microsoft Corp., Case No. 6:20-cv-454 through 465 (W.D. Tex) (Mar. 

30, 2021).

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WSOU and Huawei,

2 and 11 cases between WSOU and ZTE Corporation.3 Like the two 

provisions above, Google’s striking of “Federal Express, or other similarly reliable courier” places 

a significant burden on WSOU. Under the current Order, WSOU is required to have a courier hand 

carry confidential information from Dallas, Texas, over 2,000 miles away to WSOU’s experts in 

Canada and other experts in Baltimore or San Francisco. Such an unnecessary extreme burden 

outweighs any miniscule concern of mishandling by Federal Express. Moreover, firearms and 

federally controlled pharmaceuticals are permitted to be shipped via Federal Express. If Federal 

Express can be trusted to transport these items, it can certainly be trusted to transport confidential 

papers. Google offers no evidence that delivery by “Federal Express or other similarly reliable 

courier” is more likely to cause mishandling of protected material than “hand carry.” The 

unavoidable burden imposed on WSOU by striking the Court’s default language permitting 

delivery by Federal Express or other similarly reliable courier should outweigh the minuscule risk

of Federal Express losing a package. WSOU requests that the Protective Order be modified to 

permit transportation by “Federal Express, or other similarly reliable courier.” 

C. Section 10(a): Location of Source Code Computers

WSOU requests that Section (10)(a) of the Protective Oder be modified to require that 

source code be located on stand-alone computers at the offices of Google’s counsel in Austin or at 

a location in Austin selected by Google’s counsel. In the alternative, Google may keep the source 

code in Dallas, but WSOU may review the code by remote means in Austin. This remote review 

method was initially used successfully in the Microsoft matters and used in other recent matters. 

2

WSOU Investments, LLC. v. Huawei Technologies, Ltd. Et al., Case No. 6:20-cv-533 through 544 

(W.D. Tex)(Aug. 24, 2021).

3 See WSOU Investments, LLC. v. ZTE Corporation, Case No. 6:20-cv-487 (W.D. Tex) (Dkt. No. 

83).

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For example, SecureReview, is a remote source code review tool that allows for conducting 

reviews via approved machines. Remote code reviews have become more common since the 

advent of COVID-19 travel restrictions. Remote code reviews permit PO-cleared personnel to 

review the source code in compliance with PO protocols, are reasonably fluid, and are comparable 

to standard live reviews but without the burdens of travel on the code reviewers and their families 

to be gone for weeks.

WSOU’s source code experts are in Austin. Requiring them to travel to Dallas for lengthy 

stays to review source code will impose a significant burden on them. In currently pending matters 

between WSOU and Microsoft, this Court ordered that source code be made available in Austin, 

either physically or remotely. WSOU’s experts spent approximately twenty weeks reviewing code 

in Austin. Had they been instead forced to travel to Dallas, they would have had to spend twenty 

weeks away from their homes and families reviewing code in Dallas. Here, if the source code is 

produced Dallas, WSOU’s experts will spend weeks living in Dallas away from their home and 

families or traveling daily between Austin and Dallas. All of this is unnecessary and will result in 

nothing more than imposing additional costs, real hardships on people and families, a significantly 

slowing of the case and discovery. Coupled with the provision discussed above requiring hand 

carry of the printouts, a simple operation of carry printouts back to the office requires even more 

travel by having reviewers return to Dallas just to pick up printouts.

Producing the code in Austin will be no burden to Google. WSOU’s proposal will not 

impose any burdens on Google to “find, equip and pay for offices in Austin” as Google argues. -

571 Dkt. 49 at 7. As explained in WSOU’s original statement on this issue, Google has a large 

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campus in Austin4 and uses multiple law firms in Austin. WSOU is not opposed to Google 

producing its code at its campus in Austin. Google has confirmed recently that it owns 550,000 

square feet worth of office spaces in Downtown Austin at its three locations: 100 Congress Ave., 

901 E. Fifth St., and 500 W. Second St. Given that Google has previously made its code available 

for inspection at such Austin law firms and that WSOU’s disclosed experts are located in Austin, 

Google should have no problem making code available in Austin. Also, as explained to Google in 

the meet and confers, this Court took the identical approaching in requiring Microsoft to make its 

source code available in Austin to WSOU at a law firm that Microsoft uses. See e.g., WSOU 

Investments, LLC. v. Microsoft Corp., Case No. 6:20-cv-454-465 (W.D. Tex)(Nov.. 30, 2020) 

(Text Entry . . . “The Court will have the source code made available in Austin.”). 

WSOU respectfully requests that Section 10(a) be modified to add the language in red: 

“Additionally, except as provided in paragraph 10(o) below, the stand-alone computers may only 

be located [in Austin, Texas] at the offices of the Producing Party’s outside counsel [or a location 

in Austin selected by such outside counsel.]” Alternatively, Google must provide remote access 

to its source from such location in Austin, TX.

For the foregoing reasons, WSOU respectfully requests that the Protective Order be 

modified.

4 As noted in WSOU’s complaint, in “June of 2019, Google had more than 1,100 employees in 

Austin. In January 2019, it was reported that Google “signed a lease for an entire 35-story tower 

that has started construction just east of the Central Library in downtown Austin.”4 Google’s 35-

story tower in Austin “will have 790,000 square feet of space, enough to potentially house 

about 5,000 people.” See e.g. 6:20-cv-00571-ADA, Dkt. 1, paragraph 8 and 9. (Footnotes omitted)

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Dated: September 23, 2021 Respectfully Submitted,

/s/ Ryan S. Loveless 

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 

JHuang@EtheridgeLaw.com 

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 

Counsel for Plaintiff WSOU Investments, 

LLC

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CERTIFICATE OF SERVICE

A true and correct copy of the foregoing instrument was served via email to all counsel of 

record on September 23, 2021. 

/s/ Ryan S. Loveless 

Ryan S. Loveless

CERTIFICATE OF CONFERENCE

I conferred with Counsel for Google by email on September 2, 2021 Google is opposed 

to the relief sought in this motion. 

/s/ Ryan S. Loveless 

Ryan S. Loveless

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