Netflix, Inc. v. Blockbuster, Inc.

Filing 155

Attachment 4

Declaration Of Eugene M. Paige In Support Of Netflix's Motion To Compel The Production Of Documents From Blockbuster, Inc. filed byNetflix, Inc.. (Attachments: # 1 Exhibit A# 2 Exhibit B1# 3 Exhibit B2# 4 Exhibit B3# 5 Exhibit C# 6 Exhibit D# 7 Exhibit E# 8 Exhibit F# 9 Exhibit G# 10 Exhibit H# 11 Exhibit I# 12 Exhibit J# 13 Exhibit K# 14 Exhibit L# 15 Exhibit M)(Paige, Eugene) (Filed on 3/2/2007)

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Netflix, Inc. v. Blockbuster, Inc. Doc. 155 Att. 4 Case 3:06-cv-02361-WHA Document 155-5 Filed 03/02/2007 Page 1 of 27 EXHIBIT B (Part 3 of 3) Dockets.Justia.com Case 3:06-cv-02361-WHA Document 155-5 Filed 03/02/2007 Page 2 of 27 reference. Blockbuster specifically objects to this request to the extent it seeks documents that are protected by the attorney-client privilege, the attorney workproduct doctrine, or any other applicable privilege or immunity and to the extent that it seeks documents that are confidential or proprietary. Blockbuster further specifically objects to this request on the grounds that it is vague, ambiguous, overbroad, unduly burdensome, oppressive, harassing, is not relevant to nor calculated to lead to the discovery of admissible evidence in this case, and is beyond the scope of discovery permitted by the Federal Rules of Civil Procedure. The bases for these objections include, without limitation, this request's use of the term "RELATING TO." Subject to and without waiving the foregoing objections, Blockbuster will conduct a reasonable and diligent search for non-privileged, non-work-product documents sufficient to reasonably describe and support the Netflix market power referred to in this request and will produce such documents so located that have not already been produced in this case. REQUEST FOR PRODUCTION NO. 72: All DOCUMENTS RELATING TO BLOCKBUSTER'S allegation in its ANSWER, 7 90, that "Netflix's share of the relevant product and geographical markets exceed 65%," including without limitation all documents that tend to support or contradict that allegation. RESPONSE TO REQUEST FOR PRODUCTION NO. 72: Each of Blockbuster's General Objections is incorporated here by reference. Blockbuster specifically objects to this request to the extent it seeks documents that are protected by the attorney-client privilege, the attorney workproduct doctrine, or any other applicable privilege or immunity and to the extent that it seeks documents that are confidential or proprietary. Blockbuster further specifically objects to this request on the grounds that it is vague, ambiguous, overbroad, unduly burdensome, oppressive, harassing, is not relevant to nor ALSCHULER GROSSMAN STEIN 8. KAHAN LLP 60 BLOCKBUSTER'S RESPONSES TO NETFLIX'S FIRST SET OF REQUESTS FOR PRODUCTION C 06 2361 WHA Case 3:06-cv-02361-WHA Document 155-5 Filed 03/02/2007 Page 3 of 27 calculated to lead to the discovery of admissible evidence in this case, and is beyond the scope of discovery permitted by the Federal Rules of Civil Procedure. The bases for these objections include, without limitation, this request's use of the term "RELATING TO." Subject to and without waiving the foregoing objections, Blockbuster will conduct a reasonable and diligent search for non-privileged, non-work-product documents sufficient to reasonably describe and support Netflix's market share referred to in this request and will produce such documents so located that have not already been produced in this case. REQUEST FOR PRODUCTION NO. 73: All DOCUMENTS RELATING TO BLOCKBUSTER'S allegation in its ANSWER, T[ 9 1, that "should Netflix succeed in inducing BLOCKBUSTERONLINE to exit the relevant market, Netflix would again be without significant competition in that market," including without limitation all documents that tend to support or contradict that allegation. RESPONSE TO REQUEST FOR PRODUCTION NO. 73: Each of Blockbuster's General Objections is incorporated here by reference. Blockbuster specifically objects to this request to the extent it seeks documents that are protected by the attorney-client privilege, the attorney workproduct doctrine, or any other applicable privilege or immunity and to the extent that it seeks documents that are confidential or proprietary. Blockbuster further specifically objects to this request on the grounds that it is vague, ambiguous, overbroad, unduly burdensome, oppressive, harassing, is not relevant to nor calculated to lead to the discovery of admissible evidence in this case, and is beyond the scope of discovery permitted by the Federal Rules of Civil Procedure. The bases for these objections include, without limitation, this request's use of the term "RELATING TO." Subject to and without waiving the foregoing objections, Blockbuster ALSCHULER GROSSMAN STEIN & KAHAN LLP 61 BLOCKBUSTER'S RESPONSES TO NETFLIX'S FIRST SET OF REQUESTS FOR PRODUCTION C 06 2361 WHA Case 3:06-cv-02361-WHA Document 155-5 Filed 03/02/2007 Page 4 of 27 will conduct a reasonable and diligent search for non-privileged, non-work-product documents sufficient to reasonably support the allegation referred to in this request and will produce such documents so located that have not already been produced in this case. REQUEST FOR PRODUCTION NO. 74: All DOCUMENTS RELATING TO the identity of all companies operating in the "relevant product market," as alleged by BLOCKBUSTER in its ANSWER, 7 88. RESPONSE TO REQUEST FOR PRODUCTION NO. 74: Each of Blockbuster's General Objections is incorporated here by reference. Blockbuster specifically objects to this request to the extent it seeks documents that are protected by the attorney-client privilege, the attorney workproduct doctrine, or any other applicable privilege or immunity and to the extent that it seeks documents that are confidential or proprietary. Blockbuster further specifically objects to this request on the grounds that it is vague, ambiguous, overbroad, unduly burdensome, oppressive, harassing, is not relevant to nor calculated to lead to the discovery of admissible evidence in this case, and is beyond the scope of discovery permitted by the Federal Rules of Civil Procedure. The bases for these objections include, without limitation, this request's use of the term "RELATING TO." Subject to and without waiving the foregoing objections, Blockbuster will conduct a reasonable and diligent search for non-privileged, non-work-product documents sufficient to reasonably identify competitors referred to in this request and will produce such documents so located that have not already been produced in this case. REQUEST FOR PRODUCTION NO. 75: All DOCUMENTS RELATING TO the market share of each company operating in the "relevant product market," as alleged by BLOCKBUSTER in its ALSCHULER GROSSMAN STEIN 8 KAHAN LLP 62 BLOCKBUSTER'S RESPONSES TO NETFLIX'S FIRST SET OF REQUESTS FOR PRODUCTION C 06 2361 WHA Case 3:06-cv-02361-WHA Document 155-5 Filed 03/02/2007 Page 5 of 27 ANSWER 7 88, "throughout the relevant time period up to and including the present," as alleged by BLOCKBUSTER in its ANSWER, 7 89. RESPONSE TO REQUEST FOR PRODUCTION NO. 75: Each of Blockbuster's General Objections is incorporated here by reference. Blockbuster specifically objects to this request to the extent it seeks documents that are protected by the attorney-client privilege, the attorney workproduct doctrine, or any other applicable privilege or immunity and to the extent that it seeks documents that are confidential or proprietary. Blockbuster further specifically objects to this request on the grounds that it is vague, ambiguous, overbroad, unduly burdensome, oppressive, harassing, is not relevant to nor calculated to lead to the discovery of admissible evidence in this case, and is beyond the scope of discovery permitted by the Federal Rules of Civil Procedure. The bases for these objections include, without limitation, this request's use of the term "RELATING TO." Subject to and without waiving the foregoing objections, Blockbuster will conduct a reasonable and diligent search for non-privileged, non-work-product documents stating market shares referred to in this request and will produce such documents so located that have not already been produced in this case. REQUEST FOR PRODUCTION NO. 76: All DOCUMENTS RELATING TO BLOCKBUSTER'S allegations in its ANSWER, 77 111- 12, that Netflix "acted with the specific intent to monopolize the relevant market," including without limitation all documents that tend to support or contradict that allegation, RESPONSE TO REQUEST FOR PRODUCTION NO. 76: Each of Blockbuster's General Objections is incorporated here by reference. Blockbuster specifically objects to this request to the extent it seeks documents that are protected by the attorney-client privilege, the attorney workI product doctrine, or any other applicable privilege or immunity and to the extent ALSCHULER GROSSMAN STEIN 8. KAHAN LLP 63 BLOCKBUSTER'S RESPONSES TO NETFLIX'S FIRST SET OF REQUESTS FOR PRODUCTION C 06 2361 WHA Case 3:06-cv-02361-WHA Document 155-5 Filed 03/02/2007 Page 6 of 27 that it seeks documents that are confidential or proprietary. Blockbuster further specifically objects to this request on the grounds that it is vague, ambiguous, overbroad, unduly burdensome, oppressive, harassing, is not relevant to nor calculated to lead to the discovery of admissible evidence in this case, and is beyond the scope of discovery permitted by the Federal Rules of Civil Procedure. The bases for these objections include, without limitation, this request's use of the term "RELATING TO." Subject to and without waiving the foregoing objections, Blockbuster will conduct a'reasonable and diligent search for non-privileged, non-work-product documents sufficient to reasonably support the allegation referred to in this request and any documents contradicting that allegation and will produce such documents so located that have not already been produced in this case. REQUEST FOR PRODUCTION NO. 77: All DOCUMENTS RELATING TO BLOCKBUSTER'S allegation in its ANSWER, 77 113-14, that Netflix has a dangerous probability of success of monopolizing the relevant market, including without limitation all documents that tend to support or contradict that allegation. RESPONSE TO REQUEST FOR PRODUCTION NO. 77: Each of Blockbuster's General Objections is incorporated here by reference. Blockbuster specifically objects to this request to the extent it seeks documents that are protected by the attorney-client privilege, the attorney workproduct doctrine, or any other applicable privilege or immunity and to the extent that it seeks documents that are confidential or proprietary. Blockbuster further 1 specifically objects to this request on the grounds that it is vague, ambiguous, overbroad, unduly burdensome, oppressive, harassing, is not relevant to nor calculated to lead to the discovery of admissible evidence in this case, and is beyond the scope of discovery permitted by the Federal Rules of Civil Procedure. The bases for these objections include, without limitation, this request's use of the ALSCHULER GROSSMAN STEIN & KAHAN LLP 64 BLOCKBUSTER'S RESPONSES TO NETFLIX'S FIRST SET OF REQUESTS FOR PRODUCTION C 06 2361 WHA Case 3:06-cv-02361-WHA Document 155-5 Filed 03/02/2007 Page 7 of 27 term "RELATING TO." Subject to and without waiving the foregoing objections, Blockbuster will conduct a reasonable and diligent search for non-privileged, non-work-product documents sufficient to reasonably support the allegation referred to in this request and any documents contradicting that allegation and will produce such documents so located that have not already been produced in this case. REQUEST FOR PRODUCTION NO. 78: All DOCUMENTS RELATING TO actual or potential substitutes for ON-LINE DVD rentals, including without limitation any analyses, reports or surveys. RESPONSE TO REQUEST FOR PRODUCTION NO. 78: Each of Blockbuster's General Objections is incorporated here by reference. Blockbuster specifically objects to this request to the extent it seeks documents that are protected by the attorney-client privilege, the attorney workproduct doctrine, or any other applicable privilege or immunity and to the extent that it seeks documents that are confidential or proprietary. Blockbuster further specifically objects to this request on the grounds that it is vague, ambiguous, overbroad, unduly burdensome, oppressive, harassing, is not relevant to nor calculated to lead to the discovery of admissible evidence in this case, and is beyond the scope of discovery permitted by the Federal Rules of Civil Procedure. The bases for these objections include, without limitation, this request's use of the terms "ON-LINE and "RELATING TO." Subject to and without waiving the foregoing objections, Blockbuster will conduct a reasonable and diligent search for non-privileged, non-work-product documents sufficient to reasonably identify substitutes referred to in this request and will produce such documents so located that have not already been produced in I ALSCHULER GROSSMAN STEIN & KAHAN LLP this case. BLOCKBUSTER'S RESPONSES TO NETFLIX'S FIRST SET OF REQUESTS FOR PRODUCTION C 06 2361 WHA 65 Case 3:06-cv-02361-WHA Document 155-5 Filed 03/02/2007 Page 8 of 27 REQUEST FOR PRODUCTION NO. 79: All DOCUMENTS RELATING TO BLOCKBUSTER'S allegation in its ANSWER, 7 93, that "Netflix has engaged in monopolization in the relevant market during the relevant time period," including without limitation all documents that tend to support or contradict that allegation. RESPONSE TO REQUEST FOR PRODUCTION NO. 79: Each of Blockbuster's General Objections is incorporated here by reference. Blockbuster specifically objects to this request to the extent it seeks documents that are protected by the attorney-client privilege, the attorney workproduct doctrine, or any other applicable privilege or immunity and to the extent that it seeks documents that are confidential or proprietary. Blockbuster further specifically objects to this request on the grounds that it is vague, ambiguous, overbroad, unduly burdensome, oppressive, harassing, is not relevant to nor calculated to lead to the discovery of admissible evidence in this case, and is beyond the scope of discovery permitted by the Federal Rules of Civil Procedure. The bases for these objections include, without limitation, this request's use of the term "RELATING TO." Subject to and without waiving the foregoing objections, Blockbuster will conduct a reasonable and diligent search for non-privileged, non-work-product documents sufficient to reasonably support the allegation referred to in this request and any documents contradicting that allegation and will produce such documents so located that have not already been produced in this case. REQUEST FOR PRODUCTION NO. 80: All DOCUMENTS RELATING TO any alleged injury to competition in any relevant market that BLOCKBUSTER alleges was caused by any alleged antitrust violation committed by NETFLIX. RESPONSE TO REQUEST FOR PRODUCTION NO. 80: Each of Blockbuster's General Objections is incorporated here by ALSCHULER GROSSMAN STEIN 8. KAHAN LLP 66 BLOCKBUSTER'S RESPONSES TO NETFLIX'S FIRST SET OF REQUESTS FOR PRODUCTION C 06 2361 WHA Case 3:06-cv-02361-WHA Document 155-5 Filed 03/02/2007 Page 9 of 27 reference. Blockbuster specifically objects to this request to the extent it seeks documents that are protected by the attorney-client privilege, the attorney workproduct doctrine, or any other applicable privilege or immunity and to the extent that it seeks documents that are confidential or proprietary. Blockbuster further specifically objects to this request on the grounds that it is vague, ambiguous, overbroad, unduly burdensome, oppressive, harassing, is not relevant to nor calculated to lead to the discovery of admissible evidence in this case, and is beyond the scope of discovery permitted by the Federal Rules of Civil Procedure. The bases for these objections include, without limitation, this request's use of the terms "BLOCKBUSTER," "NETFLIX," and "RELATING TO." Subject to and without waiving the foregoing objections, Blockbuster will conduct a reasonable and diligent search for non-privileged, non-work-product documents showing the injury to competition referred to in this request and will produce such documents so located that have not already been produced in this case. REQUEST FOR PRODUCTION NO. 81: All DOCUMENTS RELATING TO BLOCKBUSTER'S allegation in its ANSWER, T[ 107, that "Netflix has succeeded in restraining competition in the relevant market during the relevant time period," including without limitation all documents that tend to support or contradict that allegation. RESPONSE TO REQUEST FOR PRODUCTION NO. 81: Each of Blockbuster's General Objections is incorporated here by reference. Blockbuster specifically objects to this request to the extent it seeks documents that are protected by the attorney-client privilege, the attorney workproduct doctrine, or any other applicable privilege or immunity and to the extent that it seeks documents that are confidential or proprietary. Blockbuster further specifically objects to this request on the grounds that it is vague, ambiguous, overbroad, unduly burdensome, oppressive, harassing, is not relevant to nor ALSCHULER GROSSMAN STEIN & KAHAN LLP 67 BLOCKBUSTER'S RESPONSES TO NETFLIX'S FIRST SET OF REQUESTS FOR PRODUCTION C 06 2361 WHA Case 3:06-cv-02361-WHA Document 155-5 Filed 03/02/2007 Page 10 of 27 calculated to lead to the discovery of admissible evidence in this case, and is beyond the scope of discovery permitted by the Federal Rules of Civil Procedure. The bases for these objections include, without limitation, this request's use of the term "RELATING TO." Subject to and without waiving the foregoing objections, Blockbuster will conduct a reasonable and diligent search for non-privileged, non-work-product documents sufficient to reasonably support the allegation referred to in this request and will produce such documents so located that have not already been produced in this case. REQUEST FOR PRODUCTION NO. 82: All DOCUMENTS RELATING TO BLOCKBUSTER'S allegation in its ANSWER, 7 107, that NETFLIX's alleged conduct will "deter other potential competitors from entering the relevant market," including without limitation all documents that tend to support or contradict that allegation,. RESPONSE TO REQUEST FOR PRODUCTION NO. 82: Each of Blockbuster's General Objections is incorporated here by reference. Blockbuster specifically objects to this request to the extent it seeks documents that are protected by the attorney-client privilege, the attorney workproduct doctrine, or any other applicable privilege or immunity and to the extent that it seeks documents that are confidential or proprietary. Blockbuster further specifically objects to this request on the grounds that it is vague, ambiguous, overbroad, unduly burdensome, oppressive, harassing, is not relevant to nor calculated to lead to the discovery of admissible evidence in this case, and is beyond the scope of discovery permitted by the Federal Rules of Civil Procedure. The bases for these objections include, without limitation, this request's use of the terms "NETFLIX" and "RELATING TO." Subject to and without waiving the foregoing objections, Blockbuster will conduct a reasonable and diligent search for non-privileged, non-work-product ALSCHULER GROSSMAN STEIN & KAHAN LLP 68 BLOCKBUSTER'S RESPONSES TO NETFLIX'S FIRST SET OF REQUESTS FOR PRODUCTION C 06 2361 WHA Case 3:06-cv-02361-WHA Document 155-5 Filed 03/02/2007 Page 11 of 27 documents sufficient to reasonably support the allegation referred to in this request and any documents contradicting that allegation and will produce such documents so located that have not already been produced in this case. REOUEST FOR PRODUCTION NO. 83: All DOCUMENTS RELATING TO any damages BLOCKBUSTER alleges it has suffered or will suffer as a result of any alleged antitrust violation committed by NETFLIX. RESPONSE TO REQUEST FOR PRODUCTION NO. 83: Each of Blockbuster's General Objections is incorporated here by reference. Blockbuster specifically objects to this request to the extent it seeks documents that are protected by the attorney-client privilege, the attorney workproduct doctrine, or any other applicable privilege or immunity and to the extent that it seeks documents that are confidential or proprietary. Blockbuster hrther specifically objects to this request on the grounds that it is vague, ambiguous, overbroad, unduly burdensome, oppressive, harassing, is not relevant to nor calculated to lead to the discovery of admissible evidence in this case, and is beyond the scope of discovery permitted by the Federal Rules of Civil Procedure. The bases for these objections include, without limitation, this request's use of the terms "BLOCKBUSTER," "NETFLIX," and "RELATING TO.'' Subject to and without waiving the foregoing objections, Blockbuster will conduct a reasonable and diligent search for non-privileged, non-work-product documents showing the damages referred to in this request and will produce such documents so located that have not already been produced in this case. REQUEST FOR PRODUCTION NO. 84: All DOCUMENTS RELATING TO BLOCKBUSTER'S actual or ~ 1 I potential use of any method used by NETFLIX to rent DVDs to customers I RESPONSE TO REQUEST FOR PRODUCTION NO. 84: ALSCHULER GROSSMAN STEIN 8 KAHAN LLP Each of Blockbuster's General Objections is incorporated here by 69 BLOCKBUSTER'S RESPONSES TO NETFLIX'S FIRST SET OF REQUESTS FOR PRODUCTION C 06 2361 WHA Case 3:06-cv-02361-WHA Document 155-5 Filed 03/02/2007 Page 12 of 27 reference. Blockbuster specifically objects to this request to the extent it seeks documents that are protected by the attorney-client privilege, the attorney workproduct doctrine, or any other applicable privilege or immunity and to the extent that it seeks documents that are confidential or proprietary. Blockbuster further specifically objects to this request on the grounds that it is vague, ambiguous, overbroad, unduly burdensome, oppressive, harassing, is not relevant to nor calculated to lead to the discovery of admissible evidence in this case, and is beyond the scope of discovery permitted by the Federal Rules of Civil Procedure. The bases for these objections include, without limitation, this request's use of the terms "BLOCKBUSTER," "NETFLIX," and "RELATING TO." Subject to and without waiving the foregoing objections, Blockbuster will conduct a reasonable and diligent search for non-privileged, non-work-product documents discussing use by Blockbuster Inc. of a rental method used by Netflix and will produce such documents so located that have not already been produced in this case. REQUEST FOR PRODUCTION NO. 85: All DOCUMENTS RELATING TO the actual or potential effect of competition from NETFLIX on BLOCKBUSTER'S profits or revenues from instore rentals. 20 TO PRODUCTION 85: I1 RESPONSEEachREQUEST FORGeneral ObjectionsNO.incorporated here by of Blockbuster's is reference. Blockbuster specifically objects to this request to the extent it seeks documents that are protected by the attorney-client privilege, the attorney workproduct doctrine, or any other applicable privilege or immunity and to the extent that it seeks documents that are confidential or proprietary. Blockbuster further specifically objects to this request on the grounds that it is vague, ambiguous, overbroad, unduly burdensome, oppressive, harassing, is not relevant to nor calculated to lead to the discovery of admissible evidence in this case, and is 70 BLOCKBUSTER'S RESPONSES TO NETFLIX'S FIRST SET OF REQUESTS FOR PRODUCTION C 06 2361 WHA ~ ALSCHULER GROSSMAN STEIN 8. KAHAN LLP Case 3:06-cv-02361-WHA Document 155-5 Filed 03/02/2007 Page 13 of 27 beyond the scope of discovery permitted by the Federal Rules of Civil Procedure. The bases for these objections include, without limitation, this request's use of the terms "BLOCKBUSTER," "NETFLIX," and "RELATING TO." Subject to and without waiving the foregoing objections, Blockbuster will conduct a reasonable and diligent search for non-privileged, non-work-product documents discussing Neflix's effect on Blockbuster's in-store-rental profits or revenues and will produce such documents so located that have not already been produced in this case. REQUEST FOR PRODUCTION NO. 86: All DOCUMENTS RELATING TO the actual or potential effect of competition from NETFLIX on BLOCKBUSTER'S profit or revenues fiom sales of DVDs. RESPONSE TO REQUEST FOR PRODUCTION NO. 86: Each of Blockbuster's General Objections is incorporated here by reference. Blockbuster specifically objects to this request to the extent it seeks documents that are protected by the attorney-client privilege, the attorney workproduct doctrine, or any other applicable privilege or immunity and to the extent that it seeks documents that are confidential or proprietary. Blockbuster further specifically objects to this request on the grounds that it is vague, ambiguous, overbroad, unduly burdensome, oppressive, harassing, is not relevant to nor calculated to lead to the discovery of admissible evidence in this case, and is beyond the scope of discovery permitted by the Federal Rules of Civil Procedure. The bases for these objections include, without limitation, this request's use of the terms "BLOCKBUSTER," "NETFLIX," and "RELATING TO." Subject to and without waiving the foregoing objections, Blockbuster will conduct a reasonable and diligent search for non-privileged, non-work-product documents discussing an effect of Netflix on Blockbuster's profit or revenues fiom sale of DVDs and will produce such documents so located that have not already ALSCHULER GROSSMAN STEIN & KAHAN LLP 71 BLOCKBUSTER'S RESPONSES TO NETFLIX'S FIRST SET OF REQUESTS FOR PRODUCTION C 06 2361 WHA Case 3:06-cv-02361-WHA Document 155-5 Filed 03/02/2007 Page 14 of 27 been produced in this case. REQUEST FOR PRODUCTION NO. 87: AU DOCUMENTS RELATING TO the actual or potential effect of the launch of BLOCKBUSTERONLINE on BLOCKBUSTER'S profits or revenues from IN-STORE rentals. RESPONSE TO REQUEST FOR PRODUCTION NO. 87: Each of Blockbuster's General Objections is incorporated here by reference. Blockbuster specifically objects to this request to the extent it seeks documents that are protected by the attorney-client privilege, the attorney workproduct doctrine, or any other applicable privilege or immunity and to the extent that it seeks documents that are confidential or proprietary. Blockbuster further specifically objects to this request on the grounds that it is vague, ambiguous, overbroad, unduly burdensome, oppressive, harassing, is not relevant to nor calculated to lead to the discovery of admissible evidence in this case, and is beyond the scope of discovery permitted by the Federal Rules of Civil Procedure. The bases for these objections include, without limitation, this request's use of the terms "BLOCKBUSTER," "BLOCKBUSTERONLINE," and "RELATING TO." Subject to and without waiving the foregoing objections, Blockbuster will conduct a reasonable and diligent search for non-privileged, non-work-product documents discussing an effect of the launch of Blockbuster Online on Blockbuster's profit or revenues from in-store rentals and will produce such documents so located that have not already been produced in this case. REQUEST FOR PRODUCTION NO. 88: All DOCUMENTS RELATING TO the actual or potential effect of raising or lowering the sale price of new or used DVDs on BLOCKBUSTER'S profits or revenues from IN-STORE DVD rentals. RESPONSE TO REQUEST FOR PRODUCTION NO. 88: Each of Blockbuster's General Objections is incorporated here by ALSCHULER GROSSMAN STEIN 8. KAHAN LLP 72 BLOCKBUSTER'S RESPONSES TO NETFLIX'S FIRST SET OF REQUESTS FOR PRODUCTION C 06 2361 WHA Case 3:06-cv-02361-WHA Document 155-5 Filed 03/02/2007 Page 15 of 27 reference. Blockbuster specifically objects to this request to the extent it seeks documents that are protected by the attorney-client privilege, the attorney workproduct doctrine, or any other applicable privilege or immunity and to the extent that it seeks documents that are confidential or proprietary. Blockbuster further specifically objects to this request on the grounds that it is vague, ambiguous, overbroad, unduly burdensome, oppressive, harassing, is not relevant to nor calculated to lead to the discovery of admissible evidence in this case, and is beyond the scope of discovery permitted by the Federal Rules of Civil Procedure. The bases for these objections include, without limitation, this request's use of the terms "BLOCKBUSTER and "RELATING TO." Subject to and without waiving the foregoing objections, Blockbuster will conduct a reasonable and diligent search for non-privileged, non-work-product documents an effect of varied DVD sale prices on Blockbuster's profit or revenues from in-store DVD rentals and will produce such documents so located that have not already been produced in this case. REQUEST FOR PRODUCTION NO. 89: All DOCUMENTS RELATING TO BLOCKBUSTER'S promotion in its IN-STORE locations of BLOCKBUSTERONLINE. RESPONSE TO REQUEST FOR PRODUCTION NO. 89: Each of Blockbuster's General Objections is incorporated here by reference. Blockbuster specifically objects to this request to the extent it seeks documents that are protected by the attorney-client privilege, the attorney workproduct doctrine, or any other applicable privilege or immunity and to the extent that it seeks documents that are confidential or proprietary. Blockbuster further specifically objects to this request on the grounds that it is vague, ambiguous, overbroad, unduly burdensome, oppressive, harassing, is not relevant to nor calculated to lead to the discovery of admissible evidence in this case, and is beyond the scope of discovery permitted by the Federal Rules of Civil Procedure. ALSCHULER GROSSMAN STEIN d KAHAN LLP 73 BLOCKBUSTER'S RESPONSES TO NETFLIX'S FIRST SET OF REQUESTS FOR PRODUCTION C 06 2361 WHA Case 3:06-cv-02361-WHA Document 155-5 Filed 03/02/2007 Page 16 of 27 The bases for these objections include, without limitation, this request's use of the terms "BLOCKBUSTER," "BLOCKBUSTERONLINE," and "RELATING TO." Subject to and without waiving the foregoing objections, Blockbuster will conduct a reasonable and diligent search for non-privileged, non-work-product documents sufficient to show such promotions and will produce such documents so located that have not already been produced in this case. REQUEST FOR PRODUCTION NO. 90: All DOCUMENTS RELATING TO price competition with NETFLIX. RESPONSE TO REQUEST FOR PRODUCTION NO. 90: Each of Blockbuster's General Objections is incorporated here by reference. Blockbuster specifically objects to this request to the extent it seeks documents that are protected by the attorney-client privilege, the attorney workproduct doctrine, or any other applicable privilege or immunity and to the extent that it seeks documents that are confidential or proprietary. Blockbuster further specifically objects to this request on the grounds that it is vague, ambiguous, overbroad, unduly burdensome, oppressive, harassing, is not relevant to nor calculated to lead to the discovery of admissible evidence in this case, and is beyond the scope of discovery permitted by the Federal Rules of Civil Procedure. The bases for these objections include, without limitation, this request's use of the term "RELATING TO." Subject to and without waiving the foregoing objections, Blockbuster will conduct a reasonable and diligent search for non-privileged, non-work-product documents reasonably sufficient to show price competition with Netflix and will produce such documents so located that have not already been produced in this case. REQUEST FOR PRODUCTION NO. 91: All DOCUMENTS RELATING TO the actual or potential effect of ALSCHULER GROSSMAN STEIN 8 KAHAN LLP 74 BLOCKBUSTER'S RESPONSES TO NETFLIX'S FIRST SET OF REQUESTS FOR PRODUCTION C 06 2361 WHA Case 3:06-cv-02361-WHA Document 155-5 Filed 03/02/2007 Page 17 of 27 subscription plan prices offered, or to be offered, by BLOCKBUSTERONLINE, NETFLIX, or any other ON-LINE DVD rental company, on BLOCKBUSTER'S profits or revenues derived from the IN-STORE DVD rentals. RESPONSE TO REQUEST FOR PRODUCTION NO. 91: Each of Blockbuster's General Objections is incorporated here by reference. Blockbuster specifically objects to this request to the extent it seeks documents that are protected by the attorney-client privilege, the attorney workproduct doctrine, or any other applicable privilege or immunity and to the extent that it seeks documents that are confidential or proprietary. Blockbuster further specifically objects to this request on the grounds that it is vague, ambiguous, overbroad, unduly burdensome, oppressive, harassing, is not relevant to nor calculated to lead to the discovery of admissible evidence in this case, and is beyond the scope of discovery permitted by the Federal Rules of Civil Procedure. The bases for these objections include, without limitation, this request's use of the terms "BLOCKBUSTER," "BLOCKBUSTERONLINE," "NETFLIX," "ONLINE," and "RELATING TO." Subject to and without waiving the foregoing objections, Blockbuster will conduct a reasonable and diligent search for non-privileged, non-work-product documents discussing effects of the pricing of subscription plans offered by Blockbuster or online competitors on Blockbuster's in-store-rental profits or revenues and will produce such documents so located that have not already been produced in this case. REQUEST FOR PRODUCTION NO. 92: All DOCUMENTS RELATING TO the actual or potential effect of subscription plan prices offered, or to be offered by BLOCKBUSTERONLINE, NETFLIX, or any other ON-LINE DVD rental company, on BLOCKBUSTER'S profits or revenues derived from the IN-STORE DVD sales. RESPONSE TO REQUEST FOR PRODUCTION NO. 92: ALSCHULER GROSSMAN STEIN 8 KAHAN LLP 75 BLOCKBUSTER'S RESPONSES TO NETFLIX'S FIRST SET OF REQUESTS FOR PRODUCTION C 06 2361 WHA Case 3:06-cv-02361-WHA Document 155-5 Filed 03/02/2007 Page 18 of 27 Each of Blockbuster's General Objections is incorporated here by reference. Blockbuster specifically objects to this request to the extent it seeks documents that are protected by the attorney-client privilege, the attorney workproduct doctrine, or any other applicable privilege or immunity and to the extent that it seeks documents that are confidential or proprietary. Blockbuster further specifically objects to this request on the grounds that it is vague, ambiguous, overbroad, unduly burdensome, oppressive, harassing, is not relevant to nor calculated to lead to the discovery of admissible evidence in this case, and is beyond the scope of discovery permitted by the Federal Rules of Civil Procedure. The bases for these objections include, without limitation, this request's use of the terms "BLOCKBUSTER," "BLOCKBUSTERONLINE," "NETFLIX," "ONLINE." and "RELATING TO." Subject to and without waiving the foregoing objections, Blockbuster will conduct a reasonable and diligent search for non-privileged, non-work-product documents discussing effects of the pricing of subscription plans offered by Blockbuster or online competitors on Blockbuster's profits or revenues from instore DVD sales and will produce such documents so located that have not already been produced in this case. REQUEST FOR PRODUCTION NO. 93: All DOCUMENTS RELATING TO the effect of raising or lowering the sale price of new or used DVDs on BLOCKBUSTER'S profits or revenues derived from BLOCKBUSTERONLINE. RESPONSE TO REQUEST FOR PRODUCTION NO. 93: Each of Blockbuster's General Objections is incorporated here by reference. Blockbuster specifically objects to this request to the extent it seeks documents that are protected by the attorney-client privilege, the attorney workproduct doctrine, or any other applicable privilege or immunity and to the extent that it seeks documents that are confidential or proprietary. Blockbuster further ALSCHULER GROSSMAN STEIN 8. KAHAN LLP 76 BLOCKBUSTER'S RESPONSES TO NETFLIX'S FIRST SET OF REQUESTS FOR PRODUCTION C 06 2361 WHA Case 3:06-cv-02361-WHA Document 155-5 Filed 03/02/2007 Page 19 of 27 specifically objects to this request on the grounds that it is vague, ambiguous, overbroad, unduly burdensome, oppressive, harassing, is not relevant to nor calculated to lead to the discovery of admissible evidence in this case, and is beyond the scope of discovery permitted by the Federal Rules of Civil Procedure. The bases for these objections include, without limitation, this request's use of the terms "BLOCKBUSTER," "BLOCKBUSTERONLINE," and "RELATING TO." Subject to and without waiving the foregoing objections, Blockbuster will conduct a reasonable and diligent search for non-privileged, non-work-product documents discussing effects of changes in DVD sale prices on Blockbuster Online's profits or revenues and will produce such documents so located that have not already been produced in this case. REQUEST FOR PRODUCTION NO. 94: All DOCUMENTS RELATING TO the actual or potential effect of subscription plan prices offered by NETFLIX, or by any other ON-LINE DVD rental company, on BLOCKBUSTER'S profits or revenues derived from BLOCKBUSTERONLINE. RESPONSE TO REQUEST FOR PRODUCTION NO. 94: Each of Blockbuster's General Objections is incorporated here by reference. Blockbuster specifically objects to this request to the extent it seeks documents that are protected by the attorney-client privilege, the attorney workproduct doctrine, or any other applicable privilege or immunity and to the extent that it seeks documents that are confidential or proprietary. Blockbuster further specifically objects to this request on the grounds that it is vague, ambiguous, I overbroad, unduly burdensome, oppressive, harassing, is not relevant to nor calculated to lead to the discovery of admissible evidence in this case, and is beyond the scope of discovery permitted by the Federal Rules of Civil Procedure. The bases for these objections include, without limitation, this request's use of the terms "BLOCKBUSTER," "BLOCKBUSTERONLINE," "NETFLIX," "ONALSCHULER GROSSMAN STEIN & KAHAN LLP 77 BLOCKBUSTER'S RESPONSES TO NETFLIX'S FIRST SET OF REQUESTS FOR PRODUCTION C 06 2361 WHA Case 3:06-cv-02361-WHA Document 155-5 Filed 03/02/2007 Page 20 of 27 LINE," and "RELATING TO." Subject to and without waiving the foregoing objections, Blockbuster will conduct a reasonable and diligent search for non-privileged, non-work-product documents discussing effects of changes in competitors' online subscription prices on Blockbuster Online's profits or revenues and will produce such documents so located that have not already been produced in this case. REQUEST FOR PRODUCTION NO. 95: All DOCUMENTS RELATING TO the actual or potential effect of on-demand distribution of movies by cable television providers on BLOCKBUSTER'S profits or revenues derived from IN-STORE DVD rentals. RESPONSE TO REQUEST FOR PRODUCTION NO. 95: Each of Blockbuster's General Objections is incorporated here by reference. Blockbuster specifically objects to this request to the extent it seeks documents that are protected by the attorney-client privilege, the attorney workproduct doctrine, or any other applicable privilege or immunity and to the extent that it seeks documents that are confidential or proprietary. Blockbuster further specifically objects to this request on the grounds that it is vague, ambiguous, overbroad, unduly burdensome, oppressive, harassing, is not relevant to nor calculated to lead to the discovery of admissible evidence in this case, and is beyond the scope of discovery permitted by the Federal Rules of Civil Procedure. The bases for these objections include, without limitation, this request's use of the terms "BLOCKBUSTER and "RELATING TO." Subject to and without waiving the foregoing objections, Blockbuster will conduct a reasonable and diligent search for non-privileged, non-work-product documents discussing effects of cable TV video-on-demand on Blockbuster's profits or revenues from in-store DVD rentals and will produce such documents so located that have not already been produced in this case. ALSCHULER GROSSMAN STEIN 8 KAHAN LLP 78 BLOCKBUSTER'S RESPONSES TO NETFLIX'S FIRST SET OF REQUESTS FOR PRODUCTION C 06 2361 WHA Case 3:06-cv-02361-WHA Document 155-5 Filed 03/02/2007 Page 21 of 27 REQUEST FOR PRODUCTION NO. 96: All DOCUMENTS RELATING TO the effect of distribution of movies over the internet on BLOCKBUSTER'S profits or revenues derived from IN-STORE DVD rentals. RESPONSE TO REQUEST FOR PRODUCTION NO. 96: Each of Blockbuster's General Objections is incorporated here by reference. Blockbuster specifically objects to this request to the extent it seeks documents that are protected by the attorney-client privilege, the attorney workproduct doctrine, or any other applicable privilege or immunity and to the extent that it seeks documents that are confidential or proprietary. Blockbuster further specifically objects to this request on the grounds that it is vague, ambiguous, overbroad, unduly burdensome, oppressive, harassing, is not relevant to nor calculated to lead to the discovery of admissible evidence in this case, and is beyond the scope of discovery permitted by the Federal Rules of Civil Procedure. The bases for these objections include, without limitation, this request's use of the terms "BLOCKBUSTER," "RELATING TO," and "distribution of movies over the internet." Subject to and without waiving the foregoing objections, Blockbuster will conduct a reasonable and diligent search for non-privileged, non-work-product documents discussing effects of Internet downloading or streaming of movies on Blockbuster's profits or revenues from in-store DVD rentals and will produce such documents so located that have not already been produced in this case. REQUEST FOR PRODUCTION NO. 97: All DOCUMENTS RELATING TO the effect of on-demand distribution of movies by cable television providers on BLOCKBUSTER'S profits or revenues derived from BLOCKBUSTERONLINE. RESPONSE TO REQUEST FOR PRODUCTION NO. 97: Each of Blockbuster's General Objections is incorporated here by ALSCHULER GROSSMAN STEIN 8 KAHAN LLP 79 BLOCKBUSTER'S RESPONSES TO NETFLIX'S FIRST SET OF REQUESTS FOR PRODUCTION C 06 2361 WHA Case 3:06-cv-02361-WHA Document 155-5 Filed 03/02/2007 Page 22 of 27 reference. Blockbuster specifically objects to this request to the extent it seeks documents that are protected by the attorney-client privilege, the attorney workproduct doctrine, or any other applicable privilege or immunity and to the extent that it seeks documents that are confidential or proprietary. Blockbuster further specifically objects to this request on the grounds that it is vague, ambiguous, overbroad, unduly burdensome, oppressive, harassing, is not relevant to nor calculated to lead to the discovery of admissible evidence in this case, and is beyond the scope of discovery permitted by the Federal Rules of Civil Procedure. The bases for these objections include, without limitation, this request's use of the terms "BLOCKBUSTER," "BLOCKBUSTERONLINE," "RELATING TO," and "distribution of movies over the internet." Subject to and without waiving the foregoing objections, Blockbuster will conduct a reasonable and diligent search for non-privileged, non-work-product documents discussing effects of cable TV video-on-demand on Blockbuster Online's profits and revenues and will produce such documents so located that have not already been produced in this case. REQUEST FOR PRODUCTION NO. 98: All DOCUMENTS RELATING TO the effect of distribution of movies over the internet on BLOCKBUSTER'S profits or revenues derived from BLOCKBUSTERONELINE. RESPONSE TO REQUEST FOR PRODUCTION NO. 98: Each of Blockbuster's General Objections is incorporated here by reference. Blockbuster specifically objects to this request to the extent it seeks documents that are protected by the attorney-client privilege, the attorney workproduct doctrine, or any other applicable privilege or immunity and to the extent that it seeks documents that are confidential or proprietary. Blockbuster hrther specifically objects to this request on the grounds that it is vague, ambiguous, overbroad, unduly burdensome, oppressive, harassing, is not relevant to nor ALSCHULER GROSSMAN STEIN 8 KAHAN LLP 80 BLOCKBUSTER'S RESPONSES TO NETFLIX'S FIRST SET OF REQUESTS FOR PRODUCTION C 06 2361 WHA 3 Case 3:06-cv-02361-WHA I Document 155-5 Filed 03/02/2007 Page 23 of 27 1 2 3 4 5 calculated to lead to the discovery of admissible evidence in this case, and is beyond the scope of discovery permitted by the Federal Rules of Civil Procedure. The bases for these objections include, without limitation, this request's use of the terms "BLOCKBUSTER," "BLOCKBUSTERONLINE," "RELATING TO," and "distribution of movies over the internet." Subject to and without waiving the foregoing objections, Blockbuster will conduct a reasonable and diligent search for non-privileged, non-work-product documents discussing effects of Internet downloading or streaming of movies on Blockbuster Online's profits or revenues and will produce such documents so located that have not already been produced in this case. REQUEST FOR PRODUCTION NO. 99: All DOCUMENTS RELATING TO BLOCKBUSTER'S consideration of competitive threats to BLOCKBUSTER'S profits or revenues derived from INSTORE rentals of DVDs. RESPONSE TO REQUEST FOR PRODUCTION NO. 99: Each of Blockbuster's General Objections is incorporated here by reference. Blockbuster specifically objects to this request to the extent it seeks documents that are protected by the attorney-client privilege, the attorney workproduct doctrine, or any other applicable privilege or immunity and to the extent that it seeks documents that are confidential or proprietary. Blockbuster further specifically objects to this request on the grounds that it is vague, ambiguous, overbroad, unduly burdensome, oppressive, harassing, is not relevant to nor calculated to lead to the discovery of admissible evidence in this case, and is beyond the scope of discovery permitted by the Federal Rules of Civil Procedure. The bases for these objections include, without limitation, this request's use of the terms "BLOCKBUSTER and "RELATING TO." Subject to and without waiving the foregoing objections, Blockbuster will conduct a reasonable and diligent search for non-privileged, non-work-product 81 BLOCKBUSTER'S RESPONSES TO NETFLIX'S FIRST SET OF REQUESTS FOR PRODUCTION C 06 2361 WHA 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ALSCHULER GROSSMAN STEIN 8. KAHAN LLP Case 3:06-cv-02361-WHA Document 155-5 Filed 03/02/2007 Page 24 of 27 documents discussing competitive threats to Blockbuster's profits or revenues from in-store DVD rentals and will produce such documents so located that have not already been produced in this case. REQUEST FOR PRODUCTION NO. 100: All DOCUMENTS RELATING TO BLOCKBUSTER'S consideration of competitive threats to BLOCKBUSTER'S profits or revenues derived from BLOCKBUSTERONLINE. RESPONSE TO REQUEST FOR PRODUCTION NO. 100: Each of Blockbuster's General Objections is incorporated here by reference. Blockbuster specifically objects to this request to the extent it seeks documents that are protected by the attorney-client privilege, the attorney workproduct doctrine, or any other applicable privilege or immunity and to the extent that it seeks documents that are confidential or proprietary. Blockbuster further specifically objects to this request on the grounds that it is vague, ambiguous, overbroad, unduly burdensome, oppressive, harassing, is not relevant to nor calculated to lead to the discovery of admissible evidence in this case, and is beyond the scope of discovery permitted by the Federal Rules of Civil Procedure. The bases for these objections include, without limitation, this request's use of the terms "BLOCKBUSTER," "BLOCKBUSTERONLINE," and "RELATING TO." Subject to and without waiving the foregoing objections, Blockbuster will conduct a reasonable and diligent search for non-privileged, non-work-product documents discussing competitive threats to Blockbuster Online's profits or revenues and will produce such documents so located that have not already been produced in this case. REQUEST FOR PRODUCTION NO. 101 : All DOCUMENTS RELATING TO each business transaction, if any, that BLOCKBUSTER contends was not consummated because of this litigation. ALSCHULER GROSSMAN STEIN 8 KAHAN LLP 82 BLOCKBUSTER'S RESPONSES TO NETFLIX'S FIRST SET OF REQUESTS FOR PRODUCTION C 06 2361 WHA b Case 3:06-cv-02361-WHA b Document 155-5 Filed 03/02/2007 Page 25 of 27 1 2 3 4 RESPONSE TO REQUEST FOR PRODUCTION NO. 101: Each of Blockbuster's General Objections is incorporated here by reference. Blockbuster specifically objects to this request to the extent it seeks documents that are protected by the attorney-client privilege, the attorney workproduct doctrine, or any other applicable privilege or immunity and to the extent that it seeks documents that are confidential or proprietary. Blockbuster further specifically objects to this request on the grounds that it is vague, ambiguous, overbroad, unduly burdensome, oppressive, harassing, is not relevant to nor calculated to lead to the discovery of admissible evidence in this case, and is beyond the scope of discovery permitted by the Federal Rules of Civil Procedure. The bases for these objections include, without limitation, this request's use of the terms "BLOCKBUSTER and "RELATING TO." Subject to and without waiving the foregoing objections, Blockbuster will conduct a reasonable and diligent search for non-privileged, non-work-product documents sufficient to reasonably describe each transaction referred to in this request and will produce such documents so located that have not already been produced in this case. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 REQUEST FOR PRODUCTION NO. 102: All DOCUMENTS RELATING TO each business transaction, if any, that BLOCKBUSTER contends was not consummated because of the PATENTSIN-SUIT. RESPONSE TO REQUEST FOR PRODUCTION NO. 102: Each of Blockbuster's General Objections is incorporated here by reference. Blockbuster specifically objects to this request to the extent it seeks documents that are protected by the attorney-client privilege, the attorney workproduct doctrine, or any other applicable privilege or immunity and to the extent that it seeks documents that are confidential or proprietary. Blockbuster further specifically objects to this request on the grounds that it is vague, ambiguous, 83 BLOCKBUSTER'S RESPONSES TO NETFLIX'S FIRST SET OF REQUESTS FOR PRODUCTION C 06 2361 WHA 25 26 27 28 ALSCHULER GROSSMAN STEIN & KAHAN LLP Case 3:06-cv-02361-WHA Document 155-5 Filed 03/02/2007 Page 26 of 27 overbroad, unduly burdensome, oppressive, harassing, is not relevant to nor calculated to lead to the discovery of admissible evidence in this case, and is beyond the scope of discovery permitted by the Federal Rules of Civil Procedure. The bases for these objections include, without limitation, this request's use of the terms "BLOCKBUSTER and "RELATING TO." Subject to and without waiving the foregoing objections, Blockbuster will conduct a reasonable and diligent search for non-privileged, non-work-product documents sufficient to reasonably describe each transaction referred to in this request and will produce such documents so located that have not already been produced in this case. DATED: October 2,2006 ALSCHULER GROSSMAN STEIN & KAHAN LLP B r Defendant and Counterclaimant, ALSCHULER GROSSMAN STEIN a KAHAN LLP 84 BLOCKBUSTER'S RESPONSES TO NETFLIX'S FIRST SET OF REQUESTS FOR PRODUCTION C 06 2361 WHA Case 3:06-cv-02361-WHA Document 155-5 Filed 03/02/2007 Page 27 of 27 PROOF OF SERVICE I am a resident of the State of California, over the age of eighteen years, and not a party to the within action. My business address is Alschuler Grossman Stein & Kahan LLP, The Water Garden, 1620 26th Street, Fourth Floor, North Tower, Santa Monica, California 904044060. On October 2,2006, I served a true copy of the within documents: BLOCKBUSTER lNC.'S RESPONSE TO NETFLIX'S FIRST SET OF REQUESTS FOR THE PRODUCTION OF DOCUMENTS by transmitting via facsimile the document(s) listed above to the fax number(s) set forth below on this date before 5:00 p.m. The above transmission was reported as complete and without error. Attached hereto is a copy of the respective transmission report, which was properly issued by the transmitting facsimile machine. ' by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in the United States mail at Santa Monica, California, addressed as set forth below. ' by placing the document(s) listed above in a sealed envelope, with the overnight delivery charge prepaid, addressed as set forth below, and deposited in a box or facility regularly maintained by the overnight delivery service carrier, Federal Express. by personally delivering the document(s) listed above to the person(s) at the address(es) set forth below. Tel: Fax: 415.391.5400 415.397.7188 ' Jeffrey R. Chanin, Esq. Daralyn J. Durie, Esq. Keker & Van Nest, LLP 710 Sansome Street San Francisco, CA 941 11-1704 Attorneys for Plaintiff Netflix, Inc. I am readily familiar with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. I declare that I am a member of the bar of this court. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on October 2,2006. William J. OYBrien ALSCHULER GROSSMAN STEIN & KAHAN LLP 85 BLOCKBUSTER'S RESPONSES TO NETFLIX'S FIRST SET OF REQUESTS FOR PRODUCTION C 06 2361 WHA

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