Google Inc. et al v. Egger et al

Filing 72

Memorandum in Opposition re 63 MOTION to Quash and Plaintiffs' Cross-Motion to Compel Production of Documents From Defendant Software Rights Archive, LLC filed byYahoo! Inc., IAC Search & Media, Inc., Lycos Inc., Google Inc., AOL LLC. (Kash, Jennifer) (Filed on 2/3/2009)

1 [SEE SIGNATURE BLOCK FOR COUNSEL] 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION CASE NO. CV 08-03172-RMW PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO QUASH PLAINTIFFS' 30(b)(6) NOTICE OF DEPOSITION TO DEFENDANT SOFTWARE RIGHTS ARCHIVE, LLC AND PLAINTIFFS' CROSS-MOTION TO COMPEL PRODUCTION OF DOCUMENTS FROM DEFENDANT SOFTWARE RIGHTS ARCHIVE, LLC Hearing Date: February 27, 2009 Hearing Time: 9:00 AM

11 GOOGLE INC., AOL LLC, YAHOO! INC., IAC SEARCH & MEDIA, INC., and 12 LYCOS, INC., 13 14 v. Plaintiffs,

15 L. DANIEL EGGER, SOFTWARE RIGHTS ARCHIVE, LLC, and 16 SITE TECHNOLOGIES, INC., 17 18 19 20 21 22 23 24 25 26 27 28
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Defendants.

PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO QUASH PLAINTIFFS' 30(B)(6) NOTICE AND PLAINTIFFS' CROSS-MOTION TO COMPEL PRODUCTION OF DOCUMENTS CASE NO. C-08-03172-RMW

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NOTICE OF MOTION TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on February 27, 2009, at 9:00 a.m., or as soon thereafter as the matter may be heard in the United States District Court for the Northern District of California, Plaintiffs Google Inc., AOL LLC, Yahoo! Inc., IAC Search & Media, Inc., and Lycos, Inc. will and hereby do move this Court pursuant to Local Rule 7-2 and Federal Rule of Civil Procedure 37 for an order granting Plaintiffs' Cross-Motion to Compel Production of Documents from

9 Defendant Software Rights Archive, LLC. Plaintiffs' motion is based on this Notice of Motion 10 and Motion, the accompanying Memorandum of Points and Authorities, the pleadings and other 11 papers on file in this action, and such further evidence and argument as may be presented at or 12 13 14 15 16 17 before the hearing on this matter. MEMORANDUM OF POINTS AND AUTHORITIES Preliminary Statement Plaintiffs, Google Inc., AOL LLC, Yahoo! Inc., IAC Search & Media, Inc., and Lycos, Inc., respectfully ask this Court to DENY Defendants' Motion to Quash Plaintiffs' 30(b)(6) Notice

18 of Deposition of Defendant Software Rights Archive, LLC ("SRA"). (Docket No. 63). The 19 Plaintiffs seek to depose a corporate representative of SRA on jurisdictional issues related to 20 SRA's motion to dismiss, transfer, or stay this action. (Docket No. 42). SRA has failed to 21 establish "good cause" to prevent Plaintiffs from obtaining this highly relevant and otherwise 22 23 24 25 26 discoverable information. Moreover, SRA's refusal to provide a witness unless and until the Plaintiffs disclose their theory of jurisdiction is a transparent attempt to invade the Plaintiffs' work product. The Motion to Quash should therefore be denied. Plaintiffs also cross-move to compel SRA to produce documents that are necessary for

27 Plaintiffs to fully oppose SRA's motion to dismiss, transfer, or stay. On November 21, 2008 and 28 December 12, 2008, respectively, Plaintiffs served their First and Second Set of Requests for PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO 1 QUASH PLAINTIFFS' 30(B)(6) NOTICE AND PLAINTIFFS'
CROSS-MOTION TO COMPEL PRODUCTION OF DOCUMENTS CASE NO. C-08-03172-RMW

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1 Production on SRA, which sought documents relating to SRA's contacts with California and the 2 California contacts of its closely-related parent companies and possible alter egos, SRA, LLC and 3 4 5 6 7 26(b)(1) because they are reasonably calculated to lead to admissible evidence regarding personal jurisdiction over SRA. Accordingly, Plaintiffs respectfully request that the Court GRANT their Altitude Capital Partners, L.P. SRA refused to produce any documents regarding jurisdiction in response to Plaintiffs' requests, although such documents are clearly discoverable under Rule

8 cross-motion to compel SRA to produce documents responsive to each request in Plaintiffs' First 9 and Second Set of Requests for Production. 10 11 I. 12 13 14 15 16 17 18 Background This is a declaratory judgment action regarding three United States patents. Among other things, Plaintiffs seek a declaratory judgment that Defendants SRA and Daniel Egger do not own such patents. On November 10, 2008, the Defendants filed a motion to dismiss, transfer, or stay this action. In the motion, SRA contends that it is not subject to personal jurisdiction in this Court. A. Plaintiffs' Notice of 30(b)(6) Deposition Statement of Facts

Plaintiffs' Notice of Deposition to SRA Pursuant to Rule 30(b)(6) (dated December 22,

19 2008, attached as Exhibit A, and hereinafter "Notice") seeks information related to Plaintiffs' 20 opposition to Defendants' motion to dismiss. Defendant SRA's refusal to produce a witness is 21 without merit and significantly prejudices Plaintiffs in their opposition to Defendants' motion to 22 23 24 25 dismiss (presently due February 6, 2009). SRA has no legitimate basis to refuse to provide a witness and, therefore, Plaintiffs respectfully ask that this Court deny SRA's Motion to Quash, order SRA to produce a witness on the topics in Plaintiffs' Notice within 10 days of the Court's

26 Order, and allow Plaintiffs the opportunity to submit supplemental briefing on Defendants' motion 27 to transfer, dismiss, or stay within 10 days of the deposition. 28
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PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO QUASH PLAINTIFFS' 30(B)(6) NOTICE AND PLAINTIFFS' CROSS-MOTION TO COMPEL PRODUCTION OF DOCUMENTS CASE NO. C-08-03172-RMW

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Plaintiffs' Request for Production of Documents to SRA

On November 21, 2008 and December 12, 2008, respectively, Plaintiffs served their first

3 and second set of requests for production on SRA.1 On December 9, 2008 and January 15, 2009, 4 5 6 7 8 personal jurisdiction." SRA objected to the following categories of requests as irrelevant to personal jurisdiction. First, SRA objected to requests that sought documents identifying SRA's respectively, SRA filed its objections and responses, wherein SRA refused to produce a single document.2 Instead, SRA generally objected that Plaintiffs' document requests were "irrelevant to

3 9 directors, owners, and persons having a beneficial interest in SRA's patent infringement lawsuit.

10 Second, SRA objected to every document request that sought information about SRA, LLC, 11 including requests that expressly sought documents relating to SRA, LLC's contacts with 12 13 14 15 16 California or California citizens.4 Third, SRA objected to a request that sought documents

relating to SRA's relationship with Altitude Capital Partners, L.P.,5 an investment firm that, upon information and belief, controls both SRA and SRA, LLC. On January 22, 2009, Plaintiffs sent SRA a letter explaining that these document requests

17 are relevant to establish personal jurisdiction over SRA, and emphasizing SRA's duty to respond 18 to these requests under Rule 26(b)(1).6 On January 29, 2009, SRA sent a response letter claiming, 19 inter alia, that "the demands for documents from SRA, LLC . . . have nothing to do with 20 21 22 23 24 25 26 27 28
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California personal jurisdiction [over SRA]."7 SRA also argued that documents relating to SRA's

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Pursuant to Local Rule 37-2, the document requests and responses at issue on this cross-motion are attached as Exhibits B, C, H & I to the Declaration of Jennifer A. Kash ("Kash Decl.") filed concurrently herewith. See Kash Decl. Exs. B, H. Id. at Exs. C, I. See id. at Ex. B (Requests for Production No. 8-10). See, e.g., Kash Decl. Ex. B (Requests for Production No. 1, 3, 5). See id. (Request for Production No. 11). Kash Decl. Ex. D. Id. at Ex. E. 3

PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO QUASH PLAINTIFFS' 30(B)(6) NOTICE AND PLAINTIFFS' CROSS-MOTION TO COMPEL PRODUCTION OF DOCUMENTS CASE NO. C-08-03172-RMW

1 "internal structure" are irrelevant to personal jurisdiction over SRA. Ultimately, SRA refused to 2 reconsider its objections and refused to produce any documents in response to Plaintiffs' requests. 3 4 5 6 7 8 9 I. Argument SRA's Motion To Quash Should Be Denied SRA cannot show that relief from Plaintiffs' Notice is warranted. Federal Rule of Civil Procedure 26(c) requires a showing of "good cause" before a court will quash a deposition SRA also refused to disclose whether it is in possession of documents responsive to such requests.8

10 "to protect a party or person from annoyance, embarrassment, oppression or undue burden or 11 expense." Fed. R. Civ. P. 26(c). It is well-settled that a strong showing of "good cause" is 12 required "before a party will be denied entirely the right to take a deposition." See Blankenship v. 13 14 15 16 Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975). Indeed, "[f]or good cause to exist, the party seeking protection bears the burden of showing specific prejudice or harm will result if no protective order is granted." Excelligence Learning Corp. v. Oriental Trading Co., Inc., No. 5:03-

17 CV-4947, 2004 WL 2452834 (N.D. Cal. June 4, 2004); see also Beckman Indus., Inc. v. Int'l Ins. 18 Co., 966 F.2d 470, 476 (9th Cir. 1992) ("Broad allegations of harm, unsubstantiated by specific 19 examples or articulated reasoning, do not satisfy the Rule 26(c) test."). As demonstrated below, 20 SRA has failed to establish "good cause." 21 22 23 A. Plaintiffs' 30(b)(6) Notice Seeks Information Necessary To Respond To SRA's Objection To Personal Jurisdiction Before This Court

Plaintiffs' Notice seeks information in three specific categories, each of which is directly

24 related to Plaintiffs' opposition to SRA's contention that it is not subject to personal jurisdiction in 25 this Court. First, Plaintiffs' Notice includes topics regarding SRA's relationship with "SRA, 26 27 28
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Id. at Ex. D. 4

PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO QUASH PLAINTIFFS' 30(B)(6) NOTICE AND PLAINTIFFS' CROSS-MOTION TO COMPEL PRODUCTION OF DOCUMENTS CASE NO. C-08-03172-RMW

1 LLC," Altitude Capital Partners, L.P., Daniel Egger, and any beneficiaries that have an interest in 2 SRA or its present litigation against Plaintiffs in Texas.9 See, e.g., Notice, at Topics 1­4, 10. 3 4 5 6 7 to have no present business except that it is a holding company of a patent-holding company. On information and belief, both SRA and SRA, LLC are controlled and owned by Altitude Capital, an SRA appears to be a patent holding company with no present business but litigating three United States patents. SRA's corporate parent is "SRA, LLC," a Delaware-based company that appears

10 8 investment firm that uses nonpracticing entities to bring patent infringement lawsuits. Plaintiffs

9 are entitled to explore the relationship between SRA and these other entities.11 Indeed, if SRA and 10 "SRA, LLC" are mere shells to shield Altitude Capital from this Court's jurisdiction, then Altitude 11 12 13 14 Capital's contacts with this forum are highly relevant to the issue of personal jurisdiction. SRA cannot be permitted to hide within this babushka-doll-like structure to avoid litigating in a forum where its actual controlling members have contacts with the state. See, e.g., Taurus IP, LLC v.

15 DaimlerChrysler Corp., 519 F. Supp. 2d 905, 917­23 (W.D. Wisc. 2007) (holding that a patent 16 holding company was subject to personal jurisdiction in a forum where its parent and managing 17 member had contacts with the state); Mathes v. Nat'l Utility Helicopters Ltd., 68 Cal. App. 3d 182, 18 19 20 21 22 23 24 25 26 27 28
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Defendant SRA filed suit against Google Inc., AOL LLC, Yahoo! Inc., IAC Search & Media, Inc., and Lycos, Inc. in federal court in Texas. See Case No. 2:07-cv-511 (CE) (hereinafter, the "Texas Action"). For instance, SRA shares an address -- 485 Madison Ave., New York, NY, 10022 -- with Altitude Capital. SRA also identified Russ Barron as "in-house counsel" in motion practice in the Texas Action on the scope of the protective order. See Joint Motion of the Parties to Notify the Court of (1) Agreements Regarding Protective Order and (2) One Remaining Dispute Regarding Protective Order (Docket No. 99 in the Texas Action), Kash Decl. Ex. F at 3. Mr. Barron is a consultant or advisor to Altitude Capital. Id. at 7. Moreover, Altitude Capital appears to engage in regular business in California. See, e.g., http://www.visto.com/ news/releases/pdfs/07.02.16_financing.pdf (disclosing an alleged $35M investment in a California corporation), Kash Decl. Ex. G. Plaintiffs have also served a subpoena on "SRA, LLC" on November 25, 2008, for documents relating to these issues. "SRA, LLC" refused to produce any documents. 5

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PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO QUASH PLAINTIFFS' 30(B)(6) NOTICE AND PLAINTIFFS' CROSS-MOTION TO COMPEL PRODUCTION OF DOCUMENTS CASE NO. C-08-03172-RMW

1 190 (Cal Ct. App. 1977) (California court finding jurisdiction over an Indonesian corporation 2 based on the parent and grandparent companies' ties to California). 3 4 5 6 7 Pharm., Inc. v. Metabolite Labs., Inc., 443 F.3d 1356, 1361­62 (Fed. Cir. 2006). Specifically, Plaintiffs' Deposition Notice includes topics regarding SRA's contacts with California, including Second, Plaintiffs' Notice includes topics regarding SRA's contacts with California-- topics undoubtedly relevant to personal jurisdiction in this district. See, e.g., Breckenridge

8 SRA's efforts to solicit or acquire funds; SRA's business activities in California; its contracts with 9 California; and any communications with persons or businesses in California. See, e.g., Notice, at 10 Topic Nos. 5­9. SRA claims it has done nothing but acquire the patents in February 2005 and file 11 12 13 14 the Texas lawsuit against Plaintiffs in November 2007. Defendants' Mt. to Dismiss, Transfer, or Stay, at 10 (Docket No. 42). Plaintiffs are entitled to test and explore that self-serving statement. For example, one area that is proper grounds for examination is whether any of the funds that are

15 being used to fund SRA's litigations originated from investors in California. 16 Third, Plaintiffs' Notice includes topics regarding SRA's predecessor in interest--a

17 company called Software Rights Archive, Inc. that was formed by Daniel Egger in January 2004. 18 See, e.g., Notice, at Topic Nos. 11­17. SRA cannot avoid Software Rights Archive, Inc.'s 19 20 21 22 contacts with California simply by changing its corporate form. See, e.g., Minnesota Min. & Mfg. Co. v. Eco Chem, Inc., 757 F.2d 1256, 1263 (Fed. Cir. 1985) (exercising jurisdiction over successor corporation when it was a "mere continuation" of the predecessor). Software Rights

23 Archive, Inc., for instance, maintained an internet website at http://www.srarchive.com, which 24 presumably drew traffic from visitors located in California before its decommissioning in late 25 2005. Plaintiffs are entitled to explore Software Rights Archive, Inc.'s contacts with California as 26 27 28
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well as the circumstances surrounding its change in corporate form to Software Rights Archive, LLC.
PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO QUASH PLAINTIFFS' 30(B)(6) NOTICE AND PLAINTIFFS' CROSS-MOTION TO COMPEL PRODUCTION OF DOCUMENTS CASE NO. C-08-03172-RMW

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In short, SRA's motion to quash should be denied because Plaintiffs' Notice seeks targeted

2 discovery on topics directly related to this Court's jurisdiction over SRA. 3 4 5 6 7 8 has no contacts with California whatsoever." Mt. to Quash, at 2. SRA relies on the following statement: "As of November 21, 2007, Defendant SRA's sole business activity has been to B. SRA Has No Legitimate Basis To Evade Plaintiffs' 30(b)(6) Deposition Notice

SRA has no legitimate basis to refuse to produce a corporate representative for deposition. First, SRA mischaracterizes the record when it contends that Plaintiffs have "admitted" that "SRA

9 prosecute an action against Plaintiffs for alleged infringement of the Patents-in-Suit." Cmplt. for 10 Decl. Relief at ¶ 33 (Docket No. 1). But nothing in Plaintiffs' statement, which has been neither 11 admitted or denied by SRA, precludes SRA from having significant contacts with California prior 12 13 14 15 to or subsequent to filing the Texas lawsuit (for instance, potentially acquiring funds from California investors to acquire the patents and fund the litigation). And even if SRA has no contacts with California, Plaintiffs are entitled to explore the relationship of SRA to its cascading

16 shells of entities and its predecessors, as well as those entities' contacts with California, as 17 explained above. 18 Second, SRA complains that Plaintiffs have not provided sufficient "justification" for the

19 deposition. But there is no provision of the Federal Rules of Civil Procedure or this Court's Local 20 21 22 23 Rules that requires Plaintiffs to hand over their legal theories, case strategy, deposition outline, and exhibits in advance of the deposition. Indeed, SRA's complaint is no different than asking Plaintiffs for their protected attorney work product prior to the deposition. Plaintiffs provided

24 SRA with a deposition notice that included seventeen (17) topics, all of which relate to the issue of 25 personal jurisdiction; the rules require no more. See Fed. R. Civ. P. 30(b)(6) (requiring the notice 26 to "describe with reasonable particularity the matters for examination"). Finally, there is no 27 28
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reason that SRA's corporate representative would be unduly burdened by having to investigate the
PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO QUASH PLAINTIFFS' 30(B)(6) NOTICE AND PLAINTIFFS' CROSS-MOTION TO COMPEL PRODUCTION OF DOCUMENTS CASE NO. C-08-03172-RMW

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1 noticed topics and testify on them. 2 II. 3 4 5 6 7 8 Rules authorize a party to seek documents "regarding any non-privileged matter that is relevant to any party's claim or defense." Fed. R. Civ. P. 26(b)(1), 34(a). A party may move to compel Plaintiffs' Cross-Motion to Compel Production of Documents Should Be Granted SRA cannot evade its obligation to provide documents that are relevant to testing the merits of SRA's motion to dismiss. Accordingly, the Court should compel SRA to produce documents responsive to Plaintiffs' First and Second Set of Requests for Production. The Federal

9 production of documents that were improperly withheld in response to a document request under 10 Rule 34. See Fed. R. Civ. P. 37(a)(3)(B)(iv). 11 12 13 14 15 Here, SRA should produce documents responsive to Plaintiffs' requests because such documents are highly relevant to several issues raised in SRA's motion to dismiss, such as personal jurisdiction. Just to name three examples, Plaintiffs have requested "documents relating to any contact by [SRA] or SRA, LLC with California of California law."12 They have requested

16 "documents relating to any capital, equity, line of credit, of funds obtained from, or solicited from
13 17 persons located . . . in California." And they have requested "documents sufficient to identify all

18 owners and/or beneficiaries having an interest in [SRA], including such persons having a 19 domicile, residence, or place of business in California."14 20 21 22 23 24 25 26 27 28
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Plaintiffs' requests are relevant to establishing personal jurisdiction over SRA.

For

example, the document requests concerning the identify of SRA's officers, controlling persons, and individuals with a stake in SRA's lawsuit are relevant to whether any of these individuals

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See Kash Decl. Ex. B at Request for Production No. 3. See id. at Request for Production No. 4. See id. at Request for Production No. 9. 8

PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO QUASH PLAINTIFFS' 30(B)(6) NOTICE AND PLAINTIFFS' CROSS-MOTION TO COMPEL PRODUCTION OF DOCUMENTS CASE NO. C-08-03172-RMW

1 reside in California or have reached into California for the benefit of SRA.15 If so, then SRA 2 could be subject to personal jurisdiction by virtue of these individuals' actions on SRA's behalf. 3 4 5 6 7 authorized to act for it"). Similarly, the document requests that seek information regarding SRA, LLC's contacts See Int'l. Shoe Co. v. Wash., 326 U.S. 310, 316 (1945) (a corporation's presence, for personal jurisdiction purposes, is "manifested only by activities carried on in its behalf by those who are

16 8 with California are also relevant to establishing personal jurisdiction over SRA. As discussed

9 above, the evidence available to date indicates that SRA and SRA, LLC are, on information and 10 belief, both shell companies that were established for the sole purpose of asserting the patents-in11 12 13 14 suit and do not transact any other business. Thus, for personal jurisdiction purposes, SRA and SRA, LLC do not have distinct corporate identities, and the California contacts of one can be used to establish personal jurisdiction over the other. See Howard v. Everex Sys., Inc., 228 F.3d 1057,

15 1069 n.17 (9th Cir. 2000) ("Although jurisdiction over a subsidiary does not automatically provide 16 jurisdiction over a parent, where the parent totally controls the actions of the subsidiary so that the 17 subsidiary is the mere alter ego of the parent, jurisdiction is appropriate over the parent as well. 18 Because it appears, at the pleading stage, that [the subsidiary] is merely a shell that is entirely 19 20 21 22 controlled by [the parent], we disregard [the subsidiary's] separate identify for personal jurisdiction purposes."). For similar reasons, Plaintiffs are entitled to seek documents regarding SRA's relationship

23 with Altitude Capital ­ the ultimate entity that appears to control both SRA and SRA, LLC. If 24 Altitude Capital does indeed control SRA, then Altitude Capital's contacts with California could 25 establish personal jurisdiction over SRA. See Taurus IP, 519 F. Supp. 2d at 917-23; Mathes, 68 26 27 28
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See id. at Requests for Production Nos. 8-10, 18, 22. See Kash Decl. Ex. B at Requests for Production Nos. 1, 3, 5. 9

PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO QUASH PLAINTIFFS' 30(B)(6) NOTICE AND PLAINTIFFS' CROSS-MOTION TO COMPEL PRODUCTION OF DOCUMENTS CASE NO. C-08-03172-RMW

1 Cal. App. 3d at 190. Therefore, for personal jurisdiction purposes, it is entirely proper to inquire 2 into SRA's relationship with Altitude Capital, and SRA cannot claim that documents disclosing 3 4 5 6 7 8 cross-motion to compel production of documents should be granted, so that Plaintiffs can obtain adequate jurisdictional discovery on SRA. Plaintiffs respectfully request that this Court order this relationship are irrelevant to personal jurisdiction. Conclusion For these reasons, Defendant SRA's motion to quash should be denied, and Plaintiffs'

9 SRA to produce a corporate representative to testify on the topics in Plaintiffs' Notice and to 10 produce documents responsive to each request in Plaintiffs' First and Second Set of Requests for 11 Production. Plaintiffs further request that the Court provide Plaintiffs with 10 days after the date 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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of the 30(b)(6) deposition and receipt of the documents to allow Plaintiffs the opportunity to submit supplemental briefing on Defendants' motion to transfer, dismiss, or stay.

PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO QUASH PLAINTIFFS' 30(B)(6) NOTICE AND PLAINTIFFS' CROSS-MOTION TO COMPEL PRODUCTION OF DOCUMENTS CASE NO. C-08-03172-RMW

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1 Dated: February 3, 2009 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Respectfully submitted, By: /s/ Thomas B. Walsh, IV Thomas B. Walsh, IV pro hac vice Texas Bar No. 00785173 E-mail: [e-mail] Fish & Richardson P.C. 1717 Main Street Suite 5000 Dallas, TX 75201 Telephone: [phone] Facsimile: [phone] Juanita R. Brooks (CA Bar No. 75934) Jason W. Wolff (CA Bar No. 215819) FISH & RICHARDSON P.C. 12390 El Camino Real San Diego, CA 92130 Telephone: [phone] Facsimile: 858-678-5099 Email: [e-mail] Attorneys for Plaintiffs GOOGLE INC. and AOL, LLC By: /s/ Richard. S.J. Hung Michael A. Jacobs (CA Bar No. 111664) Richard S.J. Hung (CA Bar No. 197425) MORRISON & FOERSTER 425 Market Street San Francisco, CA 94105 Telephone: [phone] Facsimile: 415-268-7522 Email: [e-mail] Attorneys for Plaintiff YAHOO! INC. By: /s/ Jennifer A. Kash Claude M. Stern (CA Bar No. 96737) Jennifer A. Kash (CA Bar No. 203679) QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP 555 Twin Dolphin Drive, Suite 560 Redwood Shores, CA 94065 Telephone: [phone] Facsimile: [phone] Email: [e-mail] Email:[e-mail] Attorneys for Plaintiffs IAC SEARCH & MEDIA, INC. and LYCOS, INC.

PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO QUASH PLAINTIFFS' 30(B)(6) NOTICE AND PLAINTIFFS' CROSS-MOTION TO COMPEL PRODUCTION OF DOCUMENTS CASE NO. C-08-03172-RMW

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CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing document

3 has been served on all counsel of record by ECF on this 3rd day of February 2009, and a courtesy 4 copy has been served by electronic mail. 5 Thomas F. Smegal, Jr. State Bar No. 34819 6 Law Offices of Thomas F. Smegal, Jr. One Sansome Street, 35th Floor 7 San Francisco, CA 94104 Telephone: [phone] Facsimile: [phone] 9 Jay D. Ellwanger State Bar No. 24036522 10 DiNovo Price Ellwanger & Hardy LLP P.O. Box 201690 11 Austin , Texas 78720 Telephone: [phone] Facsimile: [phone] 13 Lee L. Kaplan State Bar No. 11094400 14 (admitted pro hac vice) Jeffrey A. Potts 15 State Bar No. 00784781 (admitted pro hac vice) 16 Raj Duvvuri State Bar No. 24054185 17 (admitted pro hac vice) Smyser Kaplan & Veselka, L.L.P. 18 700 Louisiana, Suite 2300 Houston, Texas 77002 19 Telephone: [phone] Facsimile: [phone] 20 [e-mail] 21 Attorneys for Defendants L. DANIEL EGGER, 22 SOFTWARE RIGHTS ARCHIVE, LLC, and SITE TECHNOLOGIES, INC. 23 24 25 26 27 28
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/s/ Jennifer A. Kash Jennifer A. Kash

PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO QUASH PLAINTIFFS' 30(B)(6) NOTICE AND PLAINTIFFS' CROSS-MOTION TO COMPEL PRODUCTION OF DOCUMENTS CASE NO. C-08-03172-RMW

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DECLARATION OF CONSENT Pursuant to General Order No. 45, Section X(B) regarding signatures, I attest under

3 penalty of perjury that concurrence in the filing of this document has been obtained from counsel 4 for Plaintiffs Google Inc., AOL LLC, and Yahoo! Inc. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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/s/ Jennifer A. Kash Jennifer A. Kash

PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO QUASH PLAINTIFFS' 30(B)(6) NOTICE AND PLAINTIFFS' CROSS-MOTION TO COMPEL PRODUCTION OF DOCUMENTS CASE NO. C-08-03172-RMW

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CERTIFICATE OF CONFERENCE I certify that counsel for Plaintiffs conferred by letter with counsel for SRA in an attempt

3 to avoid Court intervention over the aforementioned matter, and the attempt to avoid Court 4 intervention was unsuccessful. Therefore, Plaintiffs brings the present Cross-Motion to Compel 5 Production of Documents, which SRA has indicated that it will oppose. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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/s/ Jennifer A. Kash Jennifer A. Kash

PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO QUASH PLAINTIFFS' 30(B)(6) NOTICE AND PLAINTIFFS' CROSS-MOTION TO COMPEL PRODUCTION OF DOCUMENTS CASE NO. C-08-03172-RMW

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