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Advanced Micro Devices, Inc. v. LG Electronics, Inc.

United States District Court, N.D. California

July 17, 2017

ADVANCED MICRO DEVICES, INC., et al., Plaintiffs,
v.
LG ELECTRONICS, INC., et al., Defendants.

          ORDER GRANTING AMD'S MOTION SEEKING PERMISSION TO DISCLOSE SOURCE CODE AND TECHNICAL DOCUMENTS Re: Dkt. No. 208

          SUSAN ILLSTON United States District Judge.

         Before the Court is AMD's motion seeking permission to disclose third-party Imagination Technologies, LLC's source code and technical documents to AMD's two technical experts, Dr. William Mangione-Smith and Dr. Andrew Wolfe. Dkt. No. 208. Pursuant to Civil Local Rule 7-1(b), the Court determines that this matter is appropriate for resolution without oral argument and VACATES the hearing scheduled for July 28, 2017. For the foregoing reasons, the Court GRANTS AMD's motion.

         BACKGROUND

         This is a patent infringement suit between plaintiffs Advanced Micro Devices, Inc. and ATI Technologies ULC (collectively, “AMD”) and defendants LG Electronics, Inc., LG Electronics U.S.A., Inc., and LG Electronics Mobilecomm U.S.A., Inc. (collectively, “LG”). In Fall 2016, AMD and LG entered into a protective order for this litigation. Dkt. No. 120. The protective order states that certain highly confidential information may be disclosed to experts only if: (i) “reasonably necessary” for the litigation; (ii) the experts agree to be bound by the protective order; and (iii) the party who wishes to disclose highly confidential materials to its expert first makes a written request to the designating party. Id. ¶¶ 7.3(b); 7.4(a)(2). The designating party has 14 days from receipt of the request to object to disclosure, and if the parties cannot resolve an objection through meet and confer, the party seeking disclosure may file a motion requesting court permission to disclose the information to its expert. Id. ¶¶ 7.4(b)-(c). Similar procedures govern disclosure of source code. See Id. ¶ 9.

         The parties filed an addendum to the protective order to include non-party Imagination Technologies LLC's (“Imagination's”) confidential materials. See Dkt. No. 152. According to AMD, 125 LG accused products in this case utilize Imagination graphics processors. Fahrenkrog Decl. (Dkt. No. 208-1) ¶ 3. AMD seeks to disclose certain Imagination source code and technical documents to two of its experts to aid AMD's infringement analysis as to these products.

         On February 10 and 15, 2017, pursuant to the protective order, AMD notified Imagination of its intent to disclose Imagination's technical documents and source code to AMD's two technical experts, Drs. Mangione-Smith and Wolfe. See Fahrenkrog Decl., Exs. E, F (Dkt. Nos. 208-6, 208-7). Imagination objected and the parties have been unable to resolve their disagreement through the meet and confer process.

         Since 2009, Dr. Mangione-Smith has provided “[c]onsulting and intellectual property services” as the sole proprietor of Phase Two LLC. Fahrenkrog Decl., Ex. G (Dkt. No. 208-8). He is a named inventor on dozens of patents, and has served as an expert consultant in a range of intellectual property matters. Id. As an expert, Dr. Mangione-Smith has recently been retained by organizations such as Future Link Systems, TiVo, Innovative Memory Solutions, Advanced Silicon Technologies, Ericsson, and many others. See Id. He most often provides expert services on behalf of patent plaintiffs in suits against companies like Apple, Samsung, Cisco, Google, Verizon, Dell, and others. See id.

         Since 2002, Dr. Wolfe has consulted on “processor technology, computer systems, consumer electronics, software, design tools, and intellectual property issues.” Fahrenkrog Decl., Ex. H (Dkt. No. 208-9). His sample clients include IBM, Dell, Motorola, Samsung, HTC, Huawei, Nvidia, and more. Id. Dr. Wolfe has also served as an expert witness in an array of patent cases. See id.

         AMD seeks an order from the Court granting AMD permission to disclose Imagination's documents and source code to Drs. Mangione-Smith and Wolfe. See Mot. (Dkt. No. 208).

         LEGAL STANDARD

         “In the ordinary course of litigation, a party is owed some degree of deference ‘in retaining and preparing an expert with the relevant industry experience and availability.'” GPNE Corp. v. Apple Inc., 12-cv-2885-LHK (PSG), 2014 WL 1027948, at *1 (N.D. Cal. Mar. 13, 2014) (quoting Apple Inc. v. Samsung Elecs. Co., No. 11-cv-1846-LHK (PSG), 2011 U.S. Dist. LEXIS 147515, at *2 (N.D. Cal. Dec. 22, 2011)). In some cases, however, “that interest must be balanced against an increased risk of improper use or disclosure . . . .” GPNE Corp., 2014 WL 1027948, at *1. In cases where a proposed expert's work in the field “creates a substantial risk” of misusing the information, disclosure may be permitted only where the expert “possesses unique expertise[.]” See Symantec Corp. v. Acronis Corp., No. 11-cv-5310-EMC (JSC), 2012 WL 3582974, at *3 (N.D. Cal. Aug. 20, 2012).

         DISCUSSION

         Imagination does not object to disclosure of its materials to any expert, it objects only to disclosure to AMD's two chosen experts. The Court must determine whether, on this record, disclosure of Imagination's highly confidential information to Drs. Mangione-Smith and Wolfe presents a concrete risk of misuse. The Court concludes that it does not.

         Imagination argues that both experts present a substantial risk of subconsciously misusing Imagination confidential information given their active patent consulting businesses. Imagination contends that once Drs. Mangione-Smith and Wolfe have performed the necessary analysis of Imagination's documents and source code, knowledge of that sensitive information will be “infused throughout their subsequent . . . activities in th[e] field.” Opp'n (Dkt. No. 216) at 3-4. Imagination further argues that the experts will use the information “[i]n any subsequent activity involving Imagination, ” including an ITC investigation in which Drs. Mangione-Smith and Wolfe have been designated as experts.[1]Id. at 4. Imagination further argues that Drs. Mangione-Smith and Wolfe are prolific inventors, and thus present an even greater risk of ...


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