IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

FABRICANT LLP, 

PETER LAMBRIANAKOS, VINCENT J. 

RUBINO, III, ENRIQUE W. ITURRALDE, 

and ZHONG LAW FIRM, 

Plaintiffs, 

v. 

SAMSUNG ELECTRONICS CO., LTD. and 

SAMSUNG ELECTRONICS AMERICA, 

INC.,

Defendants.

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Misc. Action No. 

 

NON-PARTIES FABRICANT LLP, CERTAIN FABRICANT LLP ATTORNEYS, 

AND ZHONG LAW FIRM’S MOTION TO QUASH SUBPOENAS1

1 Non-Parties Fabricant LLP, Peter Lambrianakos, Vincent J. Rubino, III, Enrique W. Iturralde, 

and Zhong Law Firm file this Motion in the Southern District of New York as the Court “where 

compliance is required,” under the terms of the Subpoena, in accordance with Rule 45(d)(3)(B). 

The matter in which this Subpoena was issued, and issuing Court, are AGIS Software Dev. LLC v. 

Samsung Elec. Co., No. 2:22-cv-00263-JRG, in the United States District Court for the Eastern 

District of Texas, Marshall Division.

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TABLE OF CONTENTS

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

II. BACKGROUND ................................................................................................................ 1

III. LEGAL STANDARD ......................................................................................................... 2

IV. ARGUMENT ...................................................................................................................... 3

A. The Subpoenas Subject Non-Parties to an Undue Burden...................................... 4

B. Defendants’ Subpoenas to Fabricant, the Fabricant Attorneys, and Zhong 

Law Firm Are Overly Broad and Unreasonable in Scope ...................................... 5

C. Defendants’ Subpoenas to Fabricant, the Fabricant Attorneys, and Zhong 

Law Firm Seek Privileged Information .................................................................. 7

D. Defendants Have Not Shown that No Other Means Exist to Obtain the 

Documents and Information Sought from Fabricant, the Fabricant 

Attorneys, and Zhong Law Firm ............................................................................. 9

V. CONCLUSION ................................................................................................................. 11

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I. INTRODUCTION

Pursuant to Fed. R. Civ. P. 45, Non-Parties Fabricant LLP, the Fabricant Attorneys, and 

the Zhong Law Firm (collectively, the “Non-Parties”) respectfully move the Court to quash 

Defendants Samsung Electronics Co., Ltd. and Samsung Electronics America, Inc.’s (collectively, 

“Defendants” or “Samsung”) Subpoenas, attached hereto as Exhibits 1–7, to which the Non-Parties 

object. In support of this Motion and as good cause for this request, the Non-Parties would show 

the Court as follows:

II. BACKGROUND

Plaintiff AGIS Software Development LLC (“AGIS”) filed its original complaint against 

Defendants on July 14, 2022. See AGIS Software Dev. LLC v. Samsung Elec. Co., No. 2:22-cv00263-JRG, Dkt. 1 (E.D. Tex. July 14, 2022). AGIS amended its complaint on December 5, 2022 

(id. at Dkt. 29) and again on June 16, 2023 (id. at Dkt. 69), to which Defendants filed their Answer, 

Defenses and Counterclaims on May 31, 2023 (id. at Dkt. 64). As part of its Answer, Defenses 

and Counterclaims to the Second Amended Complaint, Defendants asserted a defense of Patent 

Unenforceability of U.S. Patent No. 8,213,970 (the “’970 Patent”) due to Inequitable Conduct, 

Unclean Hands, and a counterclaim for declaratory judgment of unenforceability. See AGIS 

Software Dev. LLC v. Samsung Elec. Co., No. 2:22-cv-00263-JRG, Dkt. 80 at 13-32, 34-39 (E.D. 

Tex. June 30, 2023). 

Fabricant LLP is the law firm of counsel of record for Plaintiff AGIS, Peter Lambrianakos, 

Vincent J. Rubino, III, and Enrique Iturralde, in the EDTX matter. See id., Dkts. 5-7 (E.D. Tex. 

July 14, 2022). Fabricant LLP and the Fabricant Attorneys are also counsel of record for Plaintiff 

AGIS in a co-pending matter currently in the Northern District of California. See AGIS Software 

Dev. LLC v. Google LLC, No. 5:22-cv-04826-BLF (N.D. Cal.). Jialin Zhong of Zhong Law Firm 

was appointed as the prosecution attorney of Reexamination No. 90/014,507, filed by Google LLC 

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on May 15, 2020, on behalf of AGIS. See Ex. 8, Patent Owner Power of Attorney. 

Plaintiff AGIS filed a motion to dismiss and strike Defendants’ counterclaims and 

affirmative defenses relating to allegations of inequitable conduct and unclean hands in the 

underlying infringement litigation. See AGIS Software Dev. LLC v. Samsung Elec. Co., No. 2:22-

cv-00263-JRG, Dkt. 89 (E.D. Tex. July 21, 2023). The Subpoenas are purportedly directed to 

those claims and defenses. 

However, Defendants’ inequitable conduct defense is fatally flawed because it fails to 

plead facts showing “but-for materiality” of a claim limitation of a different patent from a prior

litigation. In addition, Defendants’ unclean hands defense is fatally flawed because it does not 

allege any acts by AGIS’s litigation counsel that plausibly suggests a Protective Order violation. 

Rather, the activity pointed to by Defendants is expressly permitted and contemplated by the 

Protective Order. Defendants provided notice of the Subpoenas on the same day that Plaintiff 

AGIS moved to dismiss and strike Defendants’ counterclaims and defenses.

Fabricant, the Fabricant Attorneys, and Zhong Law Firm have never been a party to any of 

the lawsuits. On July 31, 2023, Defendants served electronic copies of the Subpoenas on counsel 

for Fabricant, the Fabricant Attorneys, and Zhong Law Firm, which contain a copy of the 

Protective Order entered in the EDTX matter and each respective Subpoena Application. Copies 

of the Subpoenas are attached as Exhibits 1-7. Each Subpoena directs the Non-Parties to produce 

documents or appear for deposition at O’Melveny & Myers LLP’s New York office. See id. The 

issuing court is the Eastern District of Texas. See id. As explained in the Non-Parties’ Motion to 

Quash (Dkt. No. 1), the Subpoenas are overly broad and vague, unduly burdensome, and 

improperly seek privileged information. Accordingly, the Subpoenas should and must be quashed.

III. LEGAL STANDARD

“Parties may obtain discovery regarding any nonprivileged matter that is relevant to any 

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party’s claim or defense.” Fed. R. Civ. P. 26(b)(1). 

Rule 45 provides a subpoena may command “each person to whom it is directed to do the 

following at a specified time and place: attend and testify; produce designated documents, 

electronically stored information, or tangible things in that person’s possession, custody, or 

control; or permit the inspection of premises.” Fed. R. Civ. P. 45(a)(1)(A)(iii). 

With respect to non-party subpoenas, the party or attorney responsible for issuing and 

serving a subpoena “must take reasonable steps to avoid imposing undue burden or expense on a 

person subject to the subpoena” and “[t]he court for the district where compliance is required must 

enforce this duty and impose an appropriate sanction—which may include lost earnings and 

reasonable attorney’s fees—on a party or attorney who fails to comply.” Fed. R. Civ. P. 45(d)(1).

“[T]he court for the district where compliance is required must quash or modify a subpoena that: 

. . . (iii) requires disclosure of privileged or other protected matter, if no exception or waiver 

applies; or (iv) subjects a person to undue burden.” Fed. R. Civ. P. 45(d)(3)(iii)-(iv).

A party or person withholding subpoenaed information under a claim that it is privileged 

or subject to protection must: “(i) expressly make the claim; and (ii) describe the nature of the 

withheld documents, communications, or tangible things in a manner that, without revealing 

information itself privileged or protected, will enable the parties to assess the claim.” Fed. R. Civ. 

P. 45(e)(2)(A)(i)-(ii).

IV. ARGUMENT

The Court should quash Defendants’ Subpoenas to Fabricant, LLP, the Fabricant 

Attorneys, and Zhong Law Firm in their entirety because they are facially overly broad, unduly 

burdensome, unreasonable in scope, not narrowly tailored, and seek privileged information 

protected from disclosure. 

The Subpoenas directed to Fabricant LLP and Zhong Law Firm are not reasonable in scope 

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because they seek documents relating to the PTO and PTAB proceedings, without limitation to 

subject matter or privilege, and the Subpoenas to the Fabricant Attorneys fail to include any 

deposition topics whatsoever. The Subpoenas to Fabricant LLP and Zhong Law Firm, likewise,

do not specify the material to be produced as precisely as possible. The document requests and 

deposition topics in the Subpoenas, where they are included, are overly broad and purposefully 

seek information that is clearly privileged, including attorney notes and communications.

A. The Subpoenas Subject Non-Parties to an Undue Burden

The Subpoenas must be quashed because they subject the Non-Parties to an undue burden. 

Pursuant to Fed. R. Civ. P. 45(d)(3)(A)(iv), a subpoena which imposes an undue burden on a nonparty must be quashed. As the moving party, the Non-Parties bear the burden of proving that 

compliance with the subpoena would be unreasonable and oppressive. Wiwa v. Royal Dutch 

Petroleum Co., 392 F.3d 812, 818 (5th Cir. 2004). However, Fed. R. Civ. P. 45(d)(1) also imposes 

an obligation on Defendants as the issuing party to “take reasonable steps to avoid imposing undue 

burden or expense” on the Non-Parties. Determining whether the claimed burden is “undue” 

requires the court to weigh the issuing party’s needs against the recipient’s burden. See Positive 

Black Talk Inc. v. Cash Money Recs., Inc., 394 F.3d 357, 377 (5th Cir. 2004) (abrogated on other 

grounds), Reed Elsevier, Inc. v. Muchnick, 130 S. Ct. 1237 (2010)). 

Here, the factors weigh heavily against Defendants as the issuing party. Defendants seek 

to have the Non-Parties undertake a time-consuming and costly search for documents, particularly 

where a large number of those documents are already part of the reexamination record and are 

available through publicly-available means. Non-party status is a significant factor that courts 

must consider when assessing whether an undue burden exists. See WM High Yield v. O’Hanlon, 

460 F. Supp. 2d 891, 895-96 (S.D. Ind. 2006).

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In determining whether a subpoena presents an undue burden, Courts will typically 

consider the following factors: (1) the particularity with which the party describes the requested 

documents; (2) the time period covered by the request; (3) the burden imposed; (4) whether 

compliance with subpoena implicates privacy interests; (5) expense and inconvenience to the nonparty; (6) relevance of the information requested; (7) whether the sought-after evidence is more 

readily available from another source; (8) the need of the party for the documents; and (9) the 

breadth of the document request. See Wiwa, 392 F.3d at 818; see also Concord Boat Corp. v. 

Brunswick Corp., 169 F.R.D. 44, 49 (S.N.D.Y. 1996).

B. Defendants’ Subpoenas to Fabricant, the Fabricant Attorneys, and 

Zhong Law Firm Are Overly Broad and Unreasonable in Scope

Defendants’ Subpoenas to Fabricant LLP, the Fabricant Attorneys, and Zhong Law Firm

should be quashed because they are facially overbroad. A court may find that a subpoena presents 

an undue burden when the subpoena is facially overbroad. See Wiwa, 392 F.3d at 818.

Defendants’ Subpoenas to Fabricant LLP and Zhong Law Firm seek “[a]ll Documents related to 

proceedings associated with U.S. Patent No. 8,213,970 before the United States Patent office or 

the Patent Trial and Appeal Board. . . .” See Ex. 2 at 5; Ex. 7 at 5. The Requests and Topics seek 

unlimited discovery on all PTO and PTAB proceedings for the ’970 Patent. While Defendants 

appear to attempt to narrow the scope of the Requests and Topics by identifying specific 

documents and information related to the reexamination of the ‘970 Patent, it nonetheless seeks 

“[a]ll documents” related to proceedings involving the ’970 Patent. Ex. 1 at 5-8; Ex. 6 at 5-8. 

However, there is only one proceeding that is the subject of Defendants’ counterclaims and 

affirmative defenses—the reexamination of the ’970 Patent. To request documents and 

information related to all proceedings related to the ’970 Patent is unquestionably overbroad and 

not relevant to the claims and defenses in the underlying litigation.

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Defendants’ requests for documents and information related to all proceedings related to 

the ’970 Patent is facially overbroad. While a temporal limit could be used to narrow the scope of 

Defendants’ requests to relate to their counterclaims and affirmative defenses, neither the Requests

nor the Topics in the Subpoena to Fabricant LLP and Zhong Law Firm contain temporal limits on 

the information sought. Ex. 1 at 5–8; Ex. 6 at 5-8. Consequently, the Subpoenas to Fabricant LLP

and Zhong Law Firm are clearly overbroad and should be quashed in their entirety. See Ubiquiti 

Networks, Inc. v. Kozumi USA Corp., 295 F.R.D. 517, 527 (N.D. Fl. 2013) (holding documents 

requests to a non-party lacking a time parameter was facially overbroad in a patent infringement 

case). 

The Requests and the Topics also do not specify or identify the “proceedings associated 

with U.S. Patent No. 8,213,970 before the [PTO] or the [PTAB],” and the term “associated with” 

is vague and ambiguous. The overbreadth and vagueness of this language becomes even more 

burdensome in asking Fabricant LLP and Zhong Law Firm to produce “[a]ll documents” related 

to those proceedings when considering that the ’970 Patent has been involved in numerous

proceedings before the PTO and PTAB, most of which do not have any relevance to Defendants’ 

claims or defenses. Ex. 1 at 5; Ex. 6 at 5 (emphasis added).

Defendants’ failure to narrowly tailor the Requests and Topics to reexamination of the ’970 

Patent justifies quashing the Subpoenas to Fabricant LLP and Zhong Law Firm in its entirety.

Finally, the Subpoenas to the Fabricant Attorneys fail to include any deposition topics. See 

Exs. 3-5. There are no limits or boundaries provided for the testimony sought from the Fabricant 

Attorneys whatsoever. Nor do the Subpoenas to the Fabricant Attorneys state that the testimony 

sought is commensurate with the Topic in the Subpoena to Fabricant.

Defendants’ Subpoenas fail to specifically identify the relevance of the information sought 

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or a reasonable scope of inquiry in its application for subpoenas to the Fabricant Attorneys. The 

Subpoenas to the Fabricant Attorneys contain no bounds on the scope of testimony sought. And, 

as described further in Section IV.B infra, the lack of deposition topics for the Fabricant Attorneys 

is not proper because Defendants seek privileged information from Fabricant LLP, the Fabricant 

Attorneys, and Zhong Law Firm.

C. Defendants’ Subpoenas to Fabricant, the Fabricant Attorneys, and 

Zhong Law Firm Seek Privileged Information 

The Subpoenas should also be quashed because once they are stripped away of any public

information that can be obtained without a subpoena, they seek information that is predominantly 

subject to the attorney-client privilege and attorney work product privilege. The “minimal benefit” 

that Defendants are “likely to gain to its current claims in defenses ultimately is outweighed by the 

risk of encountering privilege and work-product issues.” See Petka v. Mylan Pharms., Inc., No. 

16-mc-80196-MEJ, 2016 WL 6947589, at *4 (N.D. Cal. Nov. 28, 2016) (granting motion to 

quash).

Because the Subpoenas are directed to AGIS’s litigation and prosecution counsel, 

Defendants must identify with specificity what non-privileged documents they seek. But 

Defendants make no pretense in seeking privileged documents, as the subject matter of the 

Requests and Topics is facially privileged. The Requests seek at least the following categories of 

documents that are privileged: “All Documents (including drafts and notes) concerning the 

interviews conducted with individuals at the Patent Office on or about May 17, 2021, September 

13, 2021, and October 19, 2021”; “All Documents (including drafts and notes) concerning new 

claims and amendments to existing claims proposed during the reexamination process”; and “All 

Documents embodying or reflecting communications among AGIS’s counsel involved in the 

reexamination, including but not limited to Vincent Rubino, Enrique Iturralde, Peter 

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Lambrianakos, and Jialin Zhong.” Ex. 2 at 5-8; Ex. 7 at 5-8 (emphasis added). Nowhere in the 

Subpoenas to Fabricant LLP or Zhong Law Firm do Defendants attempt to limit their requests to 

non-privileged information. 

Defendants’ definition of the term “Communication(s)” also makes clear that Defendants

seek privileged information. Defendants define “Communication(s),” stating that 

“‘Communication(s)’ means any transmission of information, ideas, facts, data, proposals, or any 

other matter by one or more persons and/or between two or more persons by any means, including 

telephone conversations, letters, telegrams, teletypes, telexes, telecopies, electronic mail, other 

computer link-ups, written memoranda, and face-to-face conversations.” Ex. 1 at 2; Ex. 6 at 2

(emphasis added). Requesting communications between AGIS’s counsel clearly shows that 

Defendants seek privileged communications, which is improper. Fed. R. Civ. P. 45(e)(2). 

The absence of any boundaries on the scope of testimony sought from the Fabricant 

Attorneys, coupled with the overly broad requests for production and deposition topics to Fabricant

and Zhong Law Firm that seek privileged information, raise serious concerns that Defendants are 

using their Affirmative Defenses and Counterclaim to improperly obtain privileged information 

concerning the ex parte reexamination of the ’970 Patent (the “’970 Patent EPR”) and privileged 

information which has no bearing on the Inequitable Conduct Defense.

The overly broad language of the Requests and the Topics taint all parts of the Subpoena. 

Even if the Requests and Topics were narrowed in scope, the information Defendants seek is 

inherently privileged. Because the Subpoenas to Fabricant LLP, the Fabricant Attorneys, and 

Zhong Law Firm is overly broad, unduly burdensome, unreasonable in scope, and seeks privileged 

information, the Court should quash the Subpoenas. 

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D. Defendants Have Not Shown that No Other Means Exist to Obtain the 

Documents and Information Sought from Fabricant, the Fabricant 

Attorneys, and Zhong Law Firm

The Subpoenas to Fabricant LLP, the Fabricant Attorneys, and Zhong Law Firm should 

also be quashed because Defendants have not shown that requesting documents from Fabricant

and Zhong Law Firm and deposing the Fabricant Attorneys is the only means by which Defendants

can obtain the requested information, to the extent non-privileged information responsive to the 

Subpoenas even exists. 

In determining whether a deposition of opposing counsel should go forward, a court may

consider whether 1) no other means exists to obtain the information sought; 2) the information 

sought is relevant and non-privileged; and 3) the information is crucial to the preparation of the 

case. Shelton v. Am. Motors Corp., 805 F.2d 1323, 1327 (8th Cir. 1986).

With respect to the first Shelton factor, Defendants have failed to show that no other means 

exist to obtain the information they seek from Fabricant LLP, the Fabricant Attorneys, and Zhong 

Law Firm. As a preliminary matter, many of the non-privileged materials sought by Defendants 

are accessible from public sources. In addition, the same materials are being sought from Fabricant

LLP and Zhong Law Firm. See Ring Plus, Inc. v. Cingular Wireless, LLC, No. 2:06-cv-159-DF, 

2008 WL 11348478, at *4 (E.D. Tex. Feb. 13, 2008) (“Defendants do not explain why the 

information sought cannot be obtained by other means or even assert that they have exhausted all 

other means available.”).

With respect to the second Shelton factor, Fabricant LLP, the Fabricant Attorneys, and 

Zhong Law Firm have shown that Defendants seek privileged information. See section IV.B 

supra. In addition, questioning the Fabricant Attorneys or Zhong Law Firm could result in 

revealing the attorney’s litigation strategy, which is information protected by the work product 

privilege. Pamida, Inc. v. E.S. Originals, Inc., 281 F.3d 726, 730 (8th Cir. 2002) (“Therefore, 

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because the answers to the questions could have in essence revealed the attorney’s litigation 

strategy, we held that the information sought was protected by the work product privilege.”). 

Finally, with respect to the third Shelton factor, Defendants has failed to demonstrate that Fabricant

LLP, the Fabricant Attorneys, and/or Zhong Law Firm have “crucial” non-privileged information

related to their defenses and counterclaims.

Moreover, “depositions of opposing counsel are disfavored generally and should be 

permitted in only limited circumstances.’” Nguyen v. Excel Corp., 197 F.3d 200, 209 (5th Cir. 

1999). Fabricant LLP and the Fabricant Attorneys were not the main prosecuting attorneys in the 

970 Patent EPR, as shown by the record. As shown in Plaintiff AGIS’s Motion to Dismiss and 

Motion to Strike (AGIS Software Dev. LLC v. Samsung Elec. Co., No. 2:22-cv-00263-JRG, Dkt. 

89 (E.D. Tex. July 21, 2023)), mere attendance at examiner interviews does not mean that Messrs. 

Rubino and Iturralde were involved in the drafting of any amended claims. Defendants should not 

be permitted to engage in a fishing expedition through these Subpoenas to support their defenses 

and counterclaims which are flawed and currently subject to motions to strike and dismiss.

Deposing Fabricant LLP and the Fabricant Attorneys is also overly burdensome and 

harassing. As shown above, much of the responsive, non-privileged information is already 

publicly-available to Defendants. If the Court were to enforce the Subpoenas to Fabricant LLP

and Zhong Law Firm as currently written, Fabricant LLP and Zhong Law Firm’s attorneys would 

be forced to expend countless hours reviewing attorney work product documents, attorney-client 

communications, and communications, all of which are privileged documents. In addition, 

Fabricant LLP and Zhong Law Firm would have to redact those documents. This is an 

unreasonable request that serves only to harass AGIS’s litigation counsel and distract the parties 

from the merits of the investigation. 

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The weakness of Defendants’ counterclaims and affirmative defenses, coupled with the 

timing of Defendants’ Subpoenas while motions to dismiss and strike the counterclaims and 

affirmative defenses are pending, indicate that the Subpoenas were served for the improper 

purpose of interfering with the prosecution of the underlying infringement case. 

Defendants have not shown that deposing Fabricant LLP, the Fabricant Attorneys, and 

Zhong Law Firm is proper, and given the potential for harassment and abuse, Fabricant LLP, the 

Fabricant Attorneys, and Zhong Law Firm respectfully request that the Court quash the Subpoenas 

to Fabricant, the Fabricant Attorneys, and Zhong Law Firm in their entireties. 

V. CONCLUSION

For the foregoing reasons, Defendants’ Subpoenas issued to Fabricant LLP, the 

Fabricant Attorneys, and Zhong Law Firm should be quashed in their entireties.

Date: August 14, 2023 /s/ Alfred R. Fabricant

Alfred R. Fabricant 

ffabricant@fabricantllp.com 

FABRICANT LLP

411 Theodore Fremd Ave., Suite 206 South 

Rye, New York 10580 

Telephone: (212) 257-5797 

Facsimile: (212) 257-5796 

Counsel for Non-Parties Fabricant LLP, 

Peter Lambrianakos, Vincent J. Rubino, III, 

Enrique W. Iturralde, and Zhong Law Firm

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CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document has been served 

upon all counsel of record for the interested parties in accordance with the Federal Rules of Civil 

Procedure via e-mail on this the 14th day of August, 2023. 

/s/ Alfred R. Fabricant 

 Alfred R. Fabricant 

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