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Cellular Communications Equipment LLC v. At & T Inc.

United States District Court, E.D. Texas, Marshall Division

May 25, 2017

CELLULAR COMMUNICATIONS EQUIPMENT LLC, Plaintiff,
v.
AT&T INC., et al., Defendants.

          MEMORANDUM AND ORDER

          ROY S. PAYNE UNITED STATES MAGISTRATE JUDGE

         Apple moves the Court to compel CCE to obtain and produce documents from third parties to this lawsuit-namely, Nokia Siemens Networks GmbH & Co. KG, Nokia Siemens Networks Oy, Nokia Networks Oy (collectively, “NSN”). Apple's Mot. [Dkt. # 396]. Apple further asks the Court to compel CCE to provide a privilege log for any documents withheld by NSN so Apple can assess privilege claims. Finally, Apple requests that the Court compel CCE to produce the inventors of U.S. Patents 8, 457, 676, 8, 570, 957, and 8, 867, 472 (the Asserted Patents) for additional depositions. [Dkt. # 396-1] at 3.

         After reviewing the parties' briefing, the Court DENIES the motion.

         I. BACKGROUND

         In 2012, NSN and CCE's parent company, Acacia Research Group, entered into a Patent Purchase Agreement (P PA) whereby NSN sold the Asserted Patents to Acacia. As part of the P PA, NSN and Acacia agreed to “fully cooperate with each other in any litigation [related to] enforcing or defending the [Asserted] Patents.” Apple's Mot. [Dkt. # 396] at 2-3.[1]

         At some point, the Asserted Patents were transferred to CCE, which then sued Apple for patent infringement. During discovery, Apple requested certain documents in NSN's possession. Apple also asked to depose the inventors of the Asserted Patents, all of whom were current or former employees of NSN.

         CCE conveyed Apple's requests to NSN and instructed it to treat the requests as if they had come from CCE. Rastegar Decl. CCE's Resp. [Dkt. # 410-4] ¶ 6. In response, NSN produced documents to Apple and made the inventors available for examination. Apple's Mot. [Dkt. # 396-2] at 4. During February and March 2017, Apple deposed the inventors still employed by NSN. Id. at 4-5.

         Apple seeks further relief. For one, NSN withheld certain documents based on privilege and work product. CCE's Resp. [Dkt. # 410-3] at 4. And despite both Apple's and CCE's requests, NSN refused to provide a privilege log for the withheld documents. Id. at 4-5 (“Apple and CCE asked yesterday whether NSN would be willing to provide a privi-lege log for its withheld documents. NSN declines to do so. . . . NSN would object to producing a privilege log as unduly burdensome.”).

         Apple now has two concerns. First, because NSN “voluntarily” produced docu-ments-as opposed to producing in response to a court order-Apple doesn't know which documents have been collected and produced by NSN. Apple's Mot. [Dkt. # 396] at 1. Second, because NSN refused to create a privilege log, Apple cannot assess the validity of NSN's privilege assertions. Id. at 2.

         II. APPLICABLE LAW

         Fed. R. Civ. P. 34 permits a party to request production of any items in another party's “possession, custody, or control.” Fed.R.Civ.P. 34(a). A district court may order the production of documents in the possession of a related nonparty entity under Rule 34(a) if those documents are under the custody or control of a party to the litigation. See, e.g., Societe Internationale Pour Particpations Industrielles et Commerciales, S.A. v. Rogers, 357 U.S. 197, 204, 78 S.Ct. 1087, 2 L.Ed.2d 1255 (1958). “‘Control' has been construed broadly by the courts as the legal right, authority, or practical ability to obtain the materials sought on demand.” SEC v. Credit Bancorp, Ltd., 194 F.R.D. 469, 471 (S.D.N.Y. 2000) (citations omitted) (applying the interpretation of control under Rule 34 to a Rule 45 subpoena).

         III. DISCUSSION

         A. The Documents

         Apple argues CCE has “control” over NSN's documents by virtue of the P PA 's cooperation provision. According to Apple, that provision gives CCE the “right, authority, or practical ability” to ...


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