UNITED STATES INTERNATIONAL TRADE COMMISSION
`WASHINGTON, D.C.
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`Before the Honorable David P. Shaw
`Administrative Law Judge
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`In the Matter of:
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`CERTAIN SEMICONDUCTOR DEVICES AND
`CONSUMER AUDIOVISUAL PRODUCTS
`CONTAINING THE SAME
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` Investigation No. 337-TA-1047
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`COMPLAINANT BROADCOM CORPORATION’S OPPOSITION TO THIRD-PARTY
`ARM’S MOTION FOR A PROTECTIVE ORDER [Motion Docket No. 1047-025]
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`Broadcom opposes ARM’s motion for a protective order [Motion Docket No. 1047-025],
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`which, just days before depositions are set to begin, seeks to add many onerous and unnecessary
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`requirements to the protective order’s existing provisions regarding source code. ARM’s
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`Proposed Addendum, if adopted this late in discovery, would likely necessitate a massive
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`document clawback, force depositions to be retaken or postponed, and almost assuredly delay the
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`procedural schedule for this Investigation. And it would do so despite there being little reason to
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`believe ARM actually needs the additional restrictions it seeks.
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`On April 13, 2017, Broadcom served its first and second set of document requests. At
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`least Requests for Production 24 and 25were directed to the source code associated with the
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`pdoucts at issue in this Investigation. ARM’s source code is incorporated into the audiovisual
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`processing units of SoCs manufactured by LG and Sigma, which perform functions that are
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`relevant to the patents asserted in this investigation, and responsive to these requests. Indeed, the
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`relevancy of ARM’s source code should have been apparent to LG and Sigma from the very
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`outset of this Investigation as all of the patents relating to audiovisual processing. Despite being
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`aware of these requests since April, LG waited until July 6, 2017, nearly four months later,
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`before notifying ARM that its source code was relevant, and being produced in this
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`Investigation. Sigma waited even longer, and apparently did not inform ARM that its source
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`code was being produced until August 2. See ARM’s August 7, 2017, Letter to ALJ Shaw at 1.
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`As a result of Respondents’ delay, Broadcom was not presented with ARM’s Proposed
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`Addendum until July 17. A meet and confer with ARM took place on July 24, just a week before
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`Broadcom’s infringement contentions—supported extensively by source code—were due. At
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`that point, Broadcom was unable to agree to ARM’s a six-page Proposed Addendum, with
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`extensive rewrites that had the potential to completely derail the source code review process.
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`And adopting the Proposed Addendum now would effectively derail fact discovery with
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`depositions of LG corporate witnesses commencing in Korea on August 10.
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`This dispute is yet another byproduct of the Respondents’ delays in discovery that
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`necessitated Broadcom’s motion to compel, which the ALJ granted-in-part in Order No. 15. As
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`the ALJ acknowledged in that order, “documents relating to the structure, design, and operation
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`of the accused products . . . should have been produced by now.” Order No. 15 at 3. Because
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`Respondents apparently failed to timely review their own source code, or at least delayed
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`informing ARM that certain of its source code was responsive to Broadcom’s discovery requests
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`and must be produced in this Investigation, ARM’s Proposed Addendum was presented to
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`Broadcom well past the point at which such an extensive modification of the protective order
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`could be agreed to.
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`In addition, ARM’s six-page Proposed Addendum is not necessary to protect ARM’s
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`source code. ARM is not a competitor to any of the parties to this Investigation—it only makes
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`software. Mot. at 1. Order No. 10, the protective order currently in place, includes extensive
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`provisions governing the production of the parties’ highly confidential source code and was
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`negotiated by parties who are direct competitors and who are each represented by experienced
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`ITC counsel, none of whom thought the restrictions proposed by ARM were necessary, because
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`they are not.
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`A.
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`ARM’s Proposed Addendum to the Protective Order Is Unworkable
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`ARM’s Proposed Addendum is just as long as the source code provisions already in place
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`in the Amended Protective Order. And, as ARM details in its motion, the Proposed Addendum
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`would impose unique, new restrictions on how ARM source code is handled that differ
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`substantially from the protections currently in place. But neither ARM nor its customers, LG and
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`Sigma, have identified where ARM’s source code is located within the LG or Sigma productions,
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`or to which LG or Sigma products ARM’s source code relates. While counsel for LG suggested
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`that ARM’s source code might mostly be in two file directories in LG’s source code production,
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`counsel for LG has also stated that ARM source code may be in various other locations as well.
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`When the parties met and conferred prior to ARM filing its motion, Broadcom suggested that
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`ARM’s source code could be provided on a separate computer, but this was never done.1
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`Likewise, while Sigma informed Broadcom on August 2 that it would be producing ARM code,
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`it did not inform Broadcom where this code would be located in the production or to which
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`Sigma products the ARM code relates.
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`Broadcom thus has no mechanism from distinguishing the ARM code from other source
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`code in LG’s and Sigma’s productions, meaning that granting ARM’s motion would force
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`Broadcom to treat the entirety of LG’s and Sigma’s source code as ARM code. This would
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`potentially result in a massive clawback as Broadcom’s source code reviewers have printed a
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`number of excerpts of the LG and Sigma source code in the past weeks that may exceed the fifty-
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`1 ARM states that its source code “can be provided on a separate review computer,” Mot. at 7
`n.5, but this was not actually done.
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`continuous-page and 750-total-page limitations in ARM’s Proposed Addendum. At a minimum,
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`every printout would have to be reviewed to determine whether it was compliant with the new
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`ARM provisions.
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`The potentially massive clawback that would be necessary to comply with the Proposed
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`Addendum would be especially disruptive now. Depositions of LG’s witnesses in Korea are
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`scheduled to begin on August 10. Broadcom agreed to begin depositions at this early date in
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`reliance on assurances from LG that it had produced all relevant source code, including the ARM
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`code, because Broadcom intends to ask these witnesses questions about the source code. If
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`Broadcom has to return the portions of the source code it intends to use, these depositions may
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`have to be postponed or retaken. Postponing or delaying depositions on source code—some of
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`the most important depositions in the Investigation—would do serious violence to the procedural
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`schedule. Expert discovery would also likely have to be delayed, because understanding the
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`source code is critical to understanding how the products operate, which in turn is critical to
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`understanding whether they infringe the asserted patents, which would in turn, jeopardize the
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`hearing date. .
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`The Proposed Addendum would also permit ARM to halt Broadcom’s review of LG and
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`Sigma code entirely, because it would require Broadcom to give notice of its experts and then
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`afford ARM up to ten days to confirm whether the experts could review ARM’s code. While
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`ARM represented that it had no objection to the experts Broadcom identified to ARM shortly
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`after the parties met and conferred, Mot. at 5 n.4, Broadcom has since retained two additional
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`experts to review source code. And in any event, ARM would not agree to remove this provision
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`even though it is entirely superfluous if ARM in fact has no objection to Broadcom’s experts.
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`And with the ongoing LG depositions, Sigma’s depositions likely beginning in the next two
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`weeks,2 and expert reports due in September, a ten-day delay in source code review would be
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`extremely prejudicial to Broadcom.
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`And even if ARM immediately agreed to allow all of Broadcom’s experts to review its
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`source code, its Proposed Addendum would seriously hinder the pace of review because it
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`prohibits reviewers from taking notes on electronic devices. One of Broadcom’s experts
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`estimates he lost approximately two hours of review time when he was asked by LG to take
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`notes by hand instead of on a (camera- and wifi-disabled) laptop. With hundreds of gigabytes of
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`source code to review—much of it produced on or shortly before the July 28, 2017, deadline set
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`forth in Order No. 15—any delay at this point jeopardizes the entire procedural schedule.
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`At least some of the practical problems that would arise from entering ARM’s Proposed
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`Addendum could have been avoided if Respondents had only timely complied with their
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`discovery obligations.
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`For its part, Sigma refused to produce the ARM source code even after the July 28
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`deadline, arguing that source code relating to how its SoCs use hardware components to process
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`video was irrelevant, even though several of the asserted patents are directed to precisely this.
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`Only when Broadcom insisted that this relevant source code be produced did Sigma disclose that
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`some of it was from ARM. ARM’s August 7, 2017, letter suggests that the fact its source code is
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`being produced by two respondents is all the more reason to adopt its Proposed Addendum.3 To
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`the contrary, it is all the more reason Respondents should have timely complied with their
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`2 Sigma has not yet confirmed the availability of its deponents beyond saying that it will likely
`be within the next two weeks.
`3 Broadcom notes that ARM did not inform Broadcom, much less meet and confer, prior to filing
`its August 7, 2017, letter, which purports to supplement its Motion. Broadcom objects to this
`procedurally-improper attempt at supplementation.
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`discovery obligations rather than delay their source code productions until the cutoff specified in
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`Order No. 15, or later.
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`B.
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`The Existing Protective Order Will Adequately Protect ARM’s Source Code
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`ARM has failed to meet its burden to show it is entitled to a protective order. ARM
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`begins by arguing that Broadcom has previously requested similar source code provisions in
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`Investigation where it was required to produce source code as a third party. But this argument is
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`highly misleading. In each Investigation cited by ARM, there was no prior source code
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`provision in the protective order. See Certain Electronic Devices including Wireless
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`Communication Devices, Tablet Computers, Media Players, and Televisions, and Components
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`Thereof, Inv. 337-TA-862, Order No. 1 (Jan. 9, 2013) (original protective order without source
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`code provision); Certain Wireless Devices with 3G and/or 4G Capabilities and Components
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`Thereof, Inv. 337-TA-868, Order No. 1 (Jan. 31, 2013) (original protective order without source
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`code provision); In the Matter of Certain Portable Electronic Communications Devices,
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`including Mobile Phones and Components Thereof, Inv. 337-TA-885, Order No. 1 (June 26,
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`2013) (original protective order without source code provision). None of these cases involved the
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`situation present here: where a third-party seeks to add to an existing source code provision an
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`additional provision, of nearly the same length, singling out that third-party’s source code for
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`special treatment.
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`Indeed, nowhere in ARM’s motion is there any explanation for why its source code
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`merits special protection. ARM generally notes that it is a software company, while the parties to
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`this Investigation make both software and hardware. But that fact does not make the software
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`created by the parties any less valuable. If anything, the fact that the parties are hardware
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`companies should give ARM comfort, as it means they are not direct competitors—indeed, two
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`of the parties are ARM’s customers—and thus production of ARM’s source code in this
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`Investigation poses little risk of competitive harm.
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`By contrast, the current source code provisions in the protective order were negotiated by
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`parties that are direct competitors. These parties include sophisticated technology companies
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`who are advised by attorneys with decades of experience practicing before the ITC. And yet,
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`none of these parties thought the restrictions in ARM’s Proposed Addendum were necessary.
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`Specifically, ARM argues that excluding electronic devices from the review room is
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`necessary to prevent “the receiving party from fully describing ARM Source Code, for example
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`using pseudocode . . . .” Mot. at 7. But handwritten notes could still fully describe the source
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`code using pseudocode. And the existing protective order prevents the parties from directly
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`copying the code into their notes in any form, and reviewers must also disable all wifi or camera
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`features on their devices to ensure copies are not made and transmitted. All that removing
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`electronic devices from the review room will achieve is to make the review slower—indeed, one
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`of Broadcom’s reviewers estimates it will be the equivalent of losing two hours of review time
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`each day.
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`Second, ARM argues that it requires additional restrictions on the electronic filing of
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`portions of its source code, first requiring the parties to attempt to file the documents in paper
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`form, and then limiting submissions of electronic copies to no more than five contiguous pages
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`unless ARM grants permission for more. This does nothing more than impose a cumbersome
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`process for filings that would require multiple parties’ permission to submit copies of source
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`code in one form or another. And it ignores the fact that the existing protective order obligates
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`any electronic filings containing source code to be made under seal in any event, meaning the
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`practical effect of this provision is nil.
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`Third, ARM seeks to limit print outs of source code to no more than fifty contiguous
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`pages or 750 cumulative pages. While limitations on print outs are included in some protective
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`orders, as ARM notes, ARM does not actually explain why fifty contiguous pages or 750
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`cumulative pages are appropriate for its source code. Page limitations like these are particularly
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`inappropriate in this case where some of the Respondents have produced hundreds of gigabytes
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`of source code. While ARM claims the relevant ARM source code is included in only a “small
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`minority” of products, Mot. 7 n.5, without knowing where ARM’s source code is located in the
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`LG and Sigma production, it is impossible for Broadcom to know its size and whether the
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`proposed page limits are reasonable. For the same reason, it is impossible to know whether the
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`limitations on transport and shipment of ARM’s source code are reasonable or, given these
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`restrictions, whether it would be possible to comply with the proposed requirement to destroy all
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`copies of source code used in a deposition once the deposition is completed.
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`Further complicating matters is the fact that ARM’s special restrictions would apply just
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`to LG’s and Sigma’s source code, while the source code produced by the other respondents
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`would be governed by a different set of (different) rules. Indeed, these inconsistent rules could
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`both be in play in the upcoming LG depositions, as some of LG’s SoCs contain ARM code, and
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`some of LG’s chips are made by other Respondents who do not use ARM code. Trying to sort
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`through the various rules regarding what code can and cannot be used at depositions, and how it
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`may get there, and what must happen to it afterward, is not going to ensure confidentiality.
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`ARM’s Proposed Addendum invites confusion and chaos instead at the worst possible time—in
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`the last days of fact discovery as the parties are set to begin depositions in four different
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`countries.
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`In stark contrast to the confusing and unnecessary provisions of the ARM Proposed
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`Addendum, the Amended Protective Order currently in place is working just fine. The parties to
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`this Investigation have now produced hundreds of gigabytes of source code—source code they
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`believe is every bit as valuable as ARM’s source code. Yet, there have been no issues with
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`maintaining the confidentiality of this source code, the parties have been able to review it
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`efficiently for the most part, and use it to prepare responses to contention interrogatories and to
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`prepare for depositions without any hiccups. And one other third party supplier has already
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`agreed to proceed under the Amended Protective Order.
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`There is simply no need to further amend a protective order that is working and trusted by
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`every other party to this case. And it is too late, the Investigation has proceeded to far into
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`discovery, to make the drastic changes ARM seeks. Had ARM’s customers been diligent about
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`their production of source code, this may have been avoided, but they failed to timely produce
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`discovery, violated the ALJ’s order, and now ARM’s request simply cannot be accommodated
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`without derailing discovery and delaying this Investigation.
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`Accordingly, Broadcom requests that the ALJ deny ARM’s motion for a protective order.
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`Date: August 8, 2017
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`Respectfully submitted,
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`/s/ John M. Caracappa
`John M. Caracappa
`Matthew N. Bathon
`Stephanie L. Roberts
`STEPTOE & JOHNSON LLP
`1330 Connecticut Avenue, NW
`Washington, DC 20036
`Tel: (202) 429-3000
`Fax: (202) 429-3902
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`Counsel for Broadcom Corporation
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`By:
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`CERTIFICATE OF SERVICE
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`Via First Class Mail
`Via Hand Delivery
`Via Overnight Courier
`Via EDIS
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` hereby certify that on this 8th day of August, 2017, a true and correct copy of the foregoing
`Complainant Broadcom Corporation’s Opposition to Third-Party ARM’s Motion for a
`Protective Order [Motion Docket No. 1047-025] was served on the following parties in the
`manner indicated:
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`Lisa R. Barton
`Secretary
`U.S. International Trade Commission
`500 E Street, S.W.
`Washington, D.C. 20436
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`The Honorable David P. Shaw
`Administrative Law Judge
`U.S. International Trade Commission
`500 E Street, S.W., Room 317
`Washington, D.C. 20436
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`John Thuermer
`Attorney Advisor
`U.S. International Trade Commission
`500 E Street, S.W., Room 317
`Washington, D.C. 20436
`Johnjames.thuermer@usitc.gov
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`Kecia J. Reynolds, Esq.
`PILLSBURY WINTHROP SHAW PITTMAN LLP
`1200 Seventeenth Street, NW
`Washington, DC 20036
`Telephone: (202) 664-8025
`Facsimile: (202) 663-8007
`Sigma-ITC@pillsburylaw.com
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`Counsel for Respondent Sigma Designs, Inc.
`Doris Johnson Hines
`FINNEGAN, HENDERSON, FARABOW, GARRETT &
`DUNNER, LLP
`910 New York Avenue, N.W.
`Washington, D.C. 20001-4413
`Telephone: (202) 408-4000
`Facsimile: (202) 408-4400
`LG-Broadcom-1047@finnegan.com
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`Counsel for Respondents LG Electronics, Inc. and LG
`Electronics U.S.A., Inc., Respondents
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`Via First Class Mail
`Via Hand Delivery
`Via Overnight Courier
`Via EDIS
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`Via First Class Mail
`Via Hand Delivery
`Via Overnight Courier
`Via Email (pdf file)
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`Via First Class Mail
`Via Hand Delivery
`Via Overnight Courier
`Via Email (pdf file)
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`Via First Class Mail
`Via Hand Delivery
`Via Overnight Courier
`Via Email (pdf file)
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`Cono A. Carrano
`AKIN, GUMP, STRAUSS, HAUER & FELD LLP
`1333 New Hampshire Avenue, N.W.
`Washington, D.C. 20036-1564
`Telephone: (202) 887-4000
`Facsimile: (202) 887-4288
`AG-VIZIO-BROADCOM@akingump.com
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`Counsel for Respondent Vizio, Inc.
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`Joseph V. Colaianni
`FISH & RICHARDSON P.C.
`1425 K Street, NW, 11th Floor
`Washington, DC 20005
`Telephone: (202) 783-5070
`Facsimile: (202) 783-2331
`FRService_MediaTek-Broadcom1047@fr.com
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`Counsel for Respondents MediaTek Inc. and MediaTek USA
`Inc., and MStar Semiconductor Inc.
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`T. Cy Walker
`Shawnna M. Yashar
`BAKER & HOSTETLER LLP
`1050 Connecticut Avenue NW
`Washington, DC 20036
`Phone: 202-861-1500
`Facsimile: 202-861-1783
`Funai-Broadcom-1047@bakerlaw.com
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`Counsel for Respondents Funai Corporation, Funai Electric
`Co., Ltd. and P&F USA, Inc.
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`Via First Class Mail
`Via Hand Delivery
`Via Overnight Courier
`Via Email (pdf file)
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`Via First Class Mail
`Via Hand Delivery
`Via Overnight Courier
`Via Email (pdf file)
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`Via First Class Mail
`Via Hand Delivery
`Via Overnight Courier
`Via Email (pdf file)
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`/s/ Lawrence Loretoni
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