Sony Computer Entertainment America LLC v. Hotz et al

Filing 94

Letter from [Joint] Plaintiff SCEA and Defendant George Hotz re Proposed Order for March 10, 2011 Hearing. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit A)(Smith, Mehrnaz) (Filed on 3/14/2011)

Sony Computer Entertainment America LLC v. Hotz et al

Doc. 94 Att. 6

EXHIBIT 6

Dockets.Justia.com

March 14, 2011

EMALÛNLY
Holly Gaudreau, Esq. (hgaudreauêkilpatricktownsend.comJ Mehrnaz Boroumand Smith, Esq. (mboroumand(ikilpatricktownsend.comJ Kilpatrick Townsend & Stockton LLP Two Embarcadero Center, 8th Floor
San Francisco, California 94111

Re: Sony Computer Entertainment America LLC v. Hotz, et al.
Dear Counsel:

the current impasse relating to the Proposed Order, we suggest the parties In light of contact Judge Spero's chambers and ask for a two day extension to try to hammer out a mutually acceptable Proposed Order. We believe these issues can be resolved without Court intervention.
We are disappointed that you rejected our offer to meet and attempt to resolve these
issues. Instead, you have essentially provided us a copy of the same proposal you provided

to us initially, without addressing any of our concerns.

Your response fails to address the substance of our proposed order, and essentially
ignores all of our concerns and proposed modifications. We believe it is disingenuous to while you are actually ignoring the clear and state that your order reflects the Court's Order
unequivocal instructions provided by the Court. This is supposed to be a

joint order, so we

hope we can amicably resolve this dispute.
Nonetheless, the proposed order you have presented basically defers all substantive

issues the Court instructed uS to resolve, and states it shall be decided at a later date or shall be decided within the discretion of the neutral. This is simply unacceptable.

While clearly the neutral has various business practices or methodologies that it must employ, the neutral is not the party that is going to dictate what searches are performed or what information is being sought. It is not the neutral's role to suggest what
items would establish Mr. Hotz's jurisdiction. The neutral must act within the boundary

and scope of the Court's Order, which is why it is important for us to establish the information sought. In fact, Judge Spero was explicit in this regard, and stated the neutral shall only perform actions authorized by the Court.

SCEA has represented to the Court that the information needed to establish jurisdiction over Hotz can be ascertained through discovery. Although SCEA has made some vague references to what it is seeking, thus far it has not provided any concrete information. The information that SCEA is seeking is within the possession, custody, or control of SCEA. The

Holly Gaudreau, Esq. Mehrnaz Boroumand Smith, Esq. March 14, 2011
Page 2

neutral is not in a position to determine what information is needed-- only how to obtain said information.
At this time, we would simply like to highlight a few responses your letter sent at 9
pm on Sunday, March 13:

Right to File Motion to Quash, and AûE Designation (Paragraph 1):
Judge Spero explicitly stated to provide such information "when you serve those subpoenas." March 10, 2011 Transcript 4: 2-5. This means that such subpoenas shall be served on a future date. He did not say such information shall be supplemented or use any other similar language. Further, those already-issued subpoenas are due to be returned to
you two days from today on March 16, 2011. Your refusal to give the subpoenaed parties

notice of their rights as ordered by Judge Spero is prejudicial to Mr. Hotz's rights and the rights of numerous third parties.

Mr. Hotz's Deposition (Paragraph 3):
You contend that at a jurisdictional deposition SCEA is entitled to cross-examine Mr. Hotz relating to his declarations made in this case. SCEA has no such right. Mr. Hotz's post-lawsuit declarations cannot form the basis for California's jurisdiction over him. Further, you contend that no burdensome objections were raised. Mr. Hotz raised numerous objections in his letter brief; including the objection that hailing Mr. Hotz cross-country who pays. would be burdensome, regardless of
The simple fact is that SCEA has a limited number of legitimate jurisdictionally redeposition by written questions, if a deposition is to occur at all, is a reasonable middle ground.

lated questions that it can ask him. And a

TIG's Instructions relating to Impoundment (Paragraph 4(c)):
As mentioned, the purpose of this Order is to delineate exactly which actions are necessary for the neutral to perform. SCEA has, as of yet, completely failed to identify with

any specificity whatsoever what it is looking for.

At this point, we are completely unaware of how any information relating to the TPM's would establish jurisdiction over Mr. Hotz. Nonetheless, SCEA has represented to the Court that the information it needs to establish jurisdiction can be ascertained from
such discovery, so we fail to see how SCEA can be at a disadvantage since it is the party making such representations. While TIG may be able to determine the method to acquire

such information, it is not TIG's role to describe what information is being soug~t.

Holly Gaudreau, Esq. Mehrnaz Boroumand Smith, Esq.
March 14, 2011
Page

3

TIG's Instructions relating to Jurisdictional Discovery (Paragraph 5):
Once again, the procedure for conducting a search for SCEA's development tools or

any information, and the information sought, are two entirely separate issues.
The Court made quite clear that the search for the SDK was allowed only because

SCEA represented that it would state that SCEA was located in California. March 10, 2011 Transcript 22:17-23:5. Therefore, the only part of a fie that the neutral can be instructed to
search for should be parts of the fie that state that SCEA is located in California and that

SCEA owns the SDK. It is surprising SCEA considers this a debatable issue given the
Court's rejection of this exact argument.!

Your offer to provide "guidance" to TIG on procedures for connecting to the PSN is contrary to the Court's instructions. TIG is to be instructed by Court Order on what to search for concerning access to the PSN, should any evidence of such access ever be generated. Further, Judge Spero "did not require" you to provide confirmation that a normal

computer can connect to the PSN because you told Judge Spero you would confirm that yourself. See March 10, 2011 Transcript 23:6-18. If SCEA cannot specifically describe the evidence that it is looking for, then Mr. Hotz clearly wil be entitled to prevent this abusive fishing expedition.
-¡¡****

At this point in time, we are hopeful that these issues can be resolved without Court you have any questions or concerns, or would like to speak about this matter, please feel free to contact me.
intervention. If

Very truly yours,
Is/Stewart Kellar
Stewart Kellar

JCP:jcp
! MS. SMITH: That's correct; but at the end of

the day, he would have something belonging to SCEA

that he should have licensed.
THE COURT: Well, but you already say he's got something belonging to you. This is not on the me-

rits, right? This is about general and specific jurisdiction.
MS. SMITH: Right....

March 10, 2011 Transcript 21:2-8.

Holly Gaudreau, Esq. Mehrnaz Boroumand Smith, Esq.
March 14, 2011 Page 4

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