Realnetworks, Inc. et al v. DVD Copy Control Association, Inc. et al

Filing 67

Letter from Rohit K. Singla Regarding Discovery Disputes. (Singla, Rohit) (Filed on 11/20/2008)

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Realnetworks, Inc. et al v. DVD Copy Control Association, Inc. et al MUNGER. T O L L E S Case3:08-cv-04548-MHP Document67 Filed11/20/08 Page1 of 2 Doc. 67 & OLSON LLP Re: Universal City Studios Productions L L L P et a l v. RealNetworks, Inc., Nos. 08-4548/4719 Dear Judge Patel: I write on b e h a l f o f the Studio Plaintiffs regarding three disputes with Real: 1. E x p e r t s S h o u l d Be A b l e to Review RealDVD S o u r c e C o d e a t T h e i r Offices [Protective O r d e r ' 14J: Real refuses to allow the Studios' experts to analyze the RealDVD source code anywhere but at the offices o f Studios counsel and insists on prior approval for any printouts. The Studios' proposed ~ 14, by contrast, allows experts to analyze the code at their offices, with ample protection for R e a l ' s code, including access logs and non-networked, password-protected computers kept under lock and key. Real has not objected to either o f the Studios' experts. R e a l ' s restrictions on source code review are unfair and prejudicial. A critical issue is how RealDVD operates. Figuring that out from the source code is a monumental task. Real has shown us 9 million+ lines o f code and 47,434 files, and it claims it has no design documents that provide a roadmap to the code. Real can educate its experts about its code easily but Real refuses to provide anyone for an informal conversation, or even early deposition, to explain the code to our experts. Hence, o u r experts are looking for needles in a haystack. Those experts live in Virginia and Santa Barbara. Requiring them to relocate to San Francisco or Los Angeles between now and the expert report date (Dec. 19) is inordinately burdensome. There is nothing unique about a party (particularly one like Real, that filed a declaratory judgment action) producing source code. The Patent Rules in this District (at the epicenter o f the tech industries) provide for it, Patent L.R. 3-4. In the Microsoft MDL, in which the undersigned represented Microsoft, Real demanded (and obtained) that its experts be able to review Microsoft's source code at their own offices. The Court should enter o u r form of~ 14. 2. W h e t h e r M P A A C o u n s e l A p p e a r i n g As C o u n s e l o f R e c o r d A r e O u t s i d e C o u n s e l [ P r o t e c t i v e O r d e r ' 2.9J: Gregory Goeckner and Daniel Robbins have appeared as the Studios' counsel. They also are General Counsel and Deputy G.C., respectively, at the MPAA. Under the Studios' ~ 2.9, Messrs. Goeckner and Robbins are outside counsel, as they are on the Court's docket. Real insists that they be treated as "house counsel," and that their access to Highly Confidential documents count against the limited number o f in-house counsel for each Studio with such access. R e a l ' s position is baseless and unfair. MP AA lawyers have appeared as counsel for the Studios for decades. Mr. Goeckner was counsel in Grokster; Mr. Robbins has been counsel in other CSS litigation, including cases with R e a l ' s lawyers on the other side. (There is nothing unusual about trade association lawyers serving as counsel; RIAA lawyers were counsel to the Napster plaintiffs.) Like any other counsel o f record, Messrs. Goeckner and Robbins are officers o f the Court. Real has offered no reason why they cannot or should not be treated as the outside counsel they are. 3. R e a l ' s Discovery M o t i o n is Meritless: We met and conferred at length with Real to narrow the document requests to material that was necessary for the preliminary injunction and that could be completed in a limited time. We are doing everything possible to review a mass o f data to get it produced next week. Real recently demanded documents regarding (i) losses from piracy and (ii) the technology underlying other digital products. These are irrelevant and highly sensitive documents that have nothing to do with the harm from RealDVD (which documents the Studios have agreed to collect and are reviewing). We can provide Real with published studies regarding internet piracy. Requiring more is burdensome and unnecessary. ROHIT.SINGLA@MTO.COM 415-512-4032 Case3:08-cv-04548-MHP Document67 MUNGER, T O L L E S & O L S O N Filed11/20/08 Page2 of 2 LLP Rohit K. Singla -2-

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