IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS WACO DIVISION WEBROOT, INC. and OPEN TEXT, INC., § § Plaintiffs § § v. § Case No. 6:22-cv-239-ADA-DTG § TREND MICRO INC., Lead Case No. 6:22-cv-243-ADA-DTG § § Defendant. JURY TRIAL DEMANDED § §

TREND MICRO INC., § § Counter-Plaintiff § § v. § § WEBROOT, INC. and OPEN TEXT, INC., § § Counter-Defendants, § § and § § OPEN TEXT CORP. § Counter-Defendant. §

ORDER ON TREND MICRO DISCOVERY DISPUTE The parties presented a discovery dispute chart under which Defendant Trend Micro requested an order requiring Plaintiffs Open Text and Webroot, Inc. (“Plaintiffs”) to provide information on which of its products include the accused functionalities, the date when each such product was developed and released, and financial information for the counterclaim accused products. The issues resolved by the Court were whether Plaintiffs could invoke Federal Rule of Civil Procedure 33(d), referring to its entire source code production, to identify which of its products include the accused functionalities and when each product was developed and released, and whether Plaintiffs must produce financial information for the counterclaim accused products by September 13, 2023. The parties’ positions are more fully detailed in Attachment A to this Order. The Court heard oral argument on September 12, 2023 and granted Defendant’s requests, in part. Thus, in accordance with that ruling, the Court hereby ORDERS both parties to provide information on which accused products include accused functionalities, with accused functionalities defined as features the accused party understands to be at issue, and identify any non-accused products that are reasonably similar to the accused products and that also use those accused functionalities. To the extent a party relies upon Federal Rule of Civil Procedure 33(d) to provide this information, it must do so with specificity. In addition, Plaintiffs must start producing financial information for the counterclaim accused products within 14 calendar days from the date of the hearing, which is September 26, 2023, and both parties must substantially complete production of financial information with respect to the accused products by October 20, 2023.

SIGNED this 19" day of September, 2023 k tr Ad - □ ) bb DEREK T. GILZILAN UNITED STATES MAGISTRATE JUDGE

Case 6:22-cv-00243-ADA-DTG Document 434 Filed 09/19/23 Page 3 of 7

ATTACHMENT A

Issue Requesting Party’s Position Responding Party’s Position Whether OTI Trend Micro’s (“Trend”) Interrogatory No. 1 seeks Trend does not cite the full scope of its Interrogatory should be information on which OTI products include the No. 1, which it has refused to narrow. Interrogatory compelled to functionalities Trend accuses of infringing the No. 1—in its entirety—requests the identity of “all counterclaim asserted patents, as well as the date provide a Accused Counterclaim Products as well as any other when each such product was developed and released. response to Trend products developed, made, sold or offered for sale, or Ex. A at 10. In a response served May 22, 2023, OTI Micro’s stated that it had not completed its investigation, and otherwise provided by You during the Relevant Time Interrogatory No. that it would supplement its response at a later date. Period that provide Accused Counterclaim 1 Id. at 11. After multiple meet and confers, OTI Functionalities, including the date when each was finally served a supplemental response on August 25, developed and released.” OTI properly objected to 2023, but that supplemental response gave no the scope and relevance of this request. Simply put, substantive information. Instead OTI cited Federal this interrogatory makes no sense and would require Rule 33(d) and referred to the entirety of its source code production. Id. OTI to parse every limitation and identify any product that has any feature listed, including generic Argument: components like a “server” or “processor.”

Instead, OTI produced all the technical information For three months, OTI has been telling Trend that it would provide information on which of its products for the products and features identified in Trend’s include the accused functionalities. Yet when OTI infringement charts. That includes the source code finally served its supplemental response, it was in and technical documents in its possession, custody or fact a non-response. Specifically, the supplemental control regarding the products that Trend accused of response provides no information on which products infringement. This is undisputed. As such, Trend can include accused features, nor does it provide any of examine those materials to determine what products the requested date information. OTI instead pointed have whatever feature it is interested in. OTI, to the entirety of its 26 terabyte source code production, citing Rule 33(d), but it did not identify therefore, properly cited to Rule 33(d) in its response. any specific files, folders, functions, or modules. It Argument: is improper to invoke Rule 33(d) in such an overbroad manner. See Quintel Tech. Ltd. v. Huawei Case 6:22-cv-00243-ADA-DTG Document 434 Filed 09/19/23 Page 4 of 7

Issue Requesting Party’s Position Responding Party’s Position Techs. USA, Inc.,

at Trend’s interrogatory has two subparts: 1) all *20-21 (E.D. Tex. Jun. 29, 2017) (granting motion to products that include “Accused Counterclaim compel a response that identifies specific Functionalities” and 2) when those products were documents). developed and released.

The requested information is unquestionably With regard subpart (1), the requested relief should relevant. Trend has identified a number of infringing be denied because the term “Accused Counterclaim functionalities. Trend further identified certain Functionalities” is vague and overly broad: it is any programs that use those functionalities, based on “functionalities [Trend] contends infringes, including publicly-available information. Only OTI knows, as identified in [Trend’s] Answer and Counterclaims however, exactly where each accused functionality is or infringement contentions.” That would seemingly used within its products. OTI also must know the cover each feature identified with respect to any release dates for its products. claim limitation, including things like “a computer” and “a server.” This information is simply not OTI’s source code might provide information on relevant. To the extent Trend is asking which where accused functionalities are used, but (1) OTI products include all of the features in its contentions, has not produced the source code for all of its OTI provided that information in the source code and products, only a subset, so even if Trend reviewed documents, which it cited pursuant Rule 33(d). Trend the entirety of OTI’s voluminous code production it can just as easily determine which of those products would still not answer the interrogatory; and (2) if includes whichever features it is interested in. OTI wishes to invoke Rule 33(d) to refer to its code, it should at least identify specific source code files or Again, Trend has not provided a targeted request for functions. Referring to the entirety of its production specific features, for example, which products is not a valid use of Rule 33(d). Also, the source include “machine learning for identifying malware,” code cannot provide release dates. or which products “analyze behavior information to identify malware.” It instead shifts the burden to OTI OTI has never argued the requested information is to figure out what Trend “contends infringes” its irrelevant, nor has it identified any specific burden in patents. In any event, as far as OTI understands, it providing the requested information. Indeed, OTI has produced the source code and technical asked Trend to provide similar information for its documents for the products that include the relevant accused products. See Ex. B. features to the counterclaim patents.

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Issue Requesting Party’s Position Responding Party’s Position Requested Relief: With regard subpart (2) requesting “the date when each such product was developed and released,” this Compel OTI to provide a supplemental response request is problematic because the products are Trend’s Interrogatory No. 1 within 7 days. The released in versions and each version may or may not Court should further order that, to the extent OTI have a feature Trend is interested in. But OTI has invokes Federal Rule 33(d), it must identify source code files or functions with specificity. again provided the information Trend needs to make that determination. For example, OTI has produced the complete source code for WSA (i.e. every version) spanning almost two decades that it could locate. Whatever features Trend is interested in, it can simply identify the first version that has it. Not only is it equally burdensome to review the source code and provide this information, it would be impossible for OTI to perform this task because OTI does not know what Trend contends are the relevant “Accused Counterclaim Functionalities.” Trend’s argument that there is too much source code is disingenuous. OTI—voluntarily—identified which directories pertain to each of the products it produced source code for outside of the context of this interrogatory. In contrast, Trend has refused to do so, and has even failed to respond to interrogatories that directly seek this information. Trend’s attempt to create a false equivalency should also be rejected. OTI has asked Trend to identify which Accused Products the source code it produced -3- Case 6:22-cv-00243-ADA-DTG Document 434 Filed 09/19/23 Page 6 of 7

Issue Requesting Party’s Position Responding Party’s Position pertain to because those source code directories are not tied to an Accused Product. While it is unnecessary because Trend already has this information, OTI agrees to supplement its prior response to identify the directory of the source code for its products. It will also identify bates ranges for documents produced regarding these accused products as part of its Rule 33(d) response. Because Trend’s request is overbroad and directed to irrelevant and burdensome discovery, and in view of the significant discovery that OTI has already provided, Trend’s request should be denied. Whether OTI OTI has not yet produced any financial information There is no dispute here. OTI has agreed to produce should be for its accused products. Trend has been asking for financial information related to its accused products compelled to this information since April, but OTI has not given and has told Trend that it is actively gathering, any date by which it will provide this information. produce financial reviewing, and preparing relevant and responsive There is no dispute financial information for OTI information for documents for production. Because of the number of accused products is relevant to damages, and OTI has accused products. not suggested there is any burden in collecting such products Trend has accused, this process is time information. Such information is responsive to at consuming and complex. OTI indicated during its last least Trend’s Requests for Production No. 9. See Ex. meet and confer with Trend that it would be producing C at 19. financial documents within the next few weeks.

Requested Relief: OTI would also point out that it has similar complaints regarding Trend’s failure to produce financial Compel OTI to provide financial information (at documents, which it has raised on numerous least revenue and units) for the counterclaim accused occasions. To date, Trend has not remedied any of the products by no later than September 13, 2023. issues identified by OTI. In fact, Trend refuses to -4- Case 6:22-cv-00243-ADA-DTG Document 434 Filed 09/19/23 Page 7 of 7

Issue Requesting Party’s Position Responding Party’s Position answer basic questions about the limited made-for- litigation .pdf documents it provided for limited products and which are clearly filtered and apportioned in ways that Trend will not disclose. Accordingly, to the extent the Court orders a date certain for production of financial information for accused products, the date should apply to both parties equally. Moreover, Trend should not be permitted to perform unilateral apportionment of its financial information. OTI is entitled to all financial data for the Accused Products, including revenue for products and services that include or relate to the Accused Products.

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