Google Inc. et al v. Egger et al

Filing 73

Declaration of Jennifer A. Kash in Support of 72 Memorandum in Opposition, 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. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I)(Related document(s) 72 ) (Kash, Jennifer) (Filed on 2/3/2009)

EXHIBIT H

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[SEE SIGNATURE PAGE FOR COUNSEL]

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION GOOGLE INC., AOL LLC, YAHOO! INC., IAC SEARCH & MEDIA, INC., and LYCOS, INC., Plaintiffs, v. L. DANIEL EGGER, SOFTWARE RIGHTS ARCHIVE, LLC, and SITE TECHNOLOGIES, INC., Defendants. Case No. CV 08-03172 RMW (RS) PLAINTIFFS' SECOND SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS AND THINGS TO SOFTWARE RIGHTS ARCHIVE, LLC Honorable Ronald M. Whyte Courtroom 6, 4th Floor

Pursuant to Federal Rule of Civil Procedure 34, Plaintiffs Google Inc., AOL LLC, Yahoo! Inc., IAC Search & Media, Inc., and Lycos, Inc. request that Defendant Software Rights Archive, LLC, produce for inspection and copying all of the following documents and other tangible things that are in their possession, custody, or control. Production shall take place within 30 (thirty) days of service of this request at the offices of Fish & Richardson P.C., 5000 Bank One Center, 1717 Main Street, Dallas, TX 75201, or at such other location and time as the parties may agree. The following definitions and instructions shall apply:

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DEFINITIONS "SOFTWARE RIGHTS ARCHIVE," "YOU" and "YOUR" means Software Rights

Archive, LLC, individually and collectively, including without limitation all of your corporate locations, all predecessors (including Software Rights Archive, Inc.), and all directors, officers, agents, representatives, employees, consultants, attorneys, and all entities acting in consort, jointventure or partnership relationships with, and others acting on behalf of, Software Rights Archive, LLC. 2. "SRA, LLC" means SRA, LLC, the party identified as wholly owning Software

Rights Archive, LLC in Docket No. 3, individually and collectively, including without limitation all of its corporate locations, all predecessors, and all directors, officers, agents, representatives, employees, consultants, attorneys, its parents, and all entities acting in consort, joint-venture or partnership relationships with, and others acting on behalf of, SRA, LLC. 3. "GOOGLE" means Google Inc., including its directors, officers, agents,

representatives, employees, consultants, attorneys, subsidiaries, affiliates, and divisions. 4. "AOL" means AOL LLC, including its directors, officers, agents, representatives,

employees, consultants, attorneys, subsidiaries, affiliates, and divisions. 5. "YAHOO!" means Yahoo! Inc. including its directors, officers, agents,

representatives, employees, consultants, attorneys, subsidiaries, affiliates, and divisions. 6. "IACSAM" means IAC Search & Media, Inc. including its directors, officers,

agents, representatives, employees, consultants, attorneys, subsidiaries, affiliates, and divisions. 7. "LYCOS" means Lycos, Inc. including its directors, officers, agents,

representatives, employees, consultants, attorneys, subsidiaries, affiliates, and divisions. 8. "PLAINTIFFS" means Google, Yahoo!, IACSAM, Lycos, and AOL, collectively

and individually. 9. "PATENTS-IN-SUIT" means U.S. Patent No. 5,544,352 ("the '352 patent"), U.S.

Patent No. 5,832,494 ("the '494 patent"), and U.S. Patent No. 6,233,571 ("the '571 patent"), and any application from which each such patent issued. 2
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10.

"RELATED APPLICATION" means any application, either in the United States or

any other jurisdiction, which includes a claim of priority, directly or indirectly, to any application from which a PATENT-IN-SUIT issued. 11. "RELATED PATENTS" means any patent, other than a PATENT-IN-SUIT,

issuing from a RELATED APPLICATION. 12. "DOCUMENT" is defined broadly to be given the full scope of that term

contemplated in Federal Rule of Civil Procedure 34, and includes all tangible things, all originals (or, if originals are not available, identical copies thereof), all non-identical copies of a document, all drafts of final documents, all other written, printed, or recorded matter of any kind, and all other data compilations from which information can be obtained and translated if necessary, that are or have been in your actual or constructive possession or control, regardless of the medium on which they are produced, reproduced, or stored (including without limitation electronic messages, computer programs and files containing any requested information), and any recording or writing, as these terms are defined in Rule 1001, Federal Rules of Evidence. Any document bearing marks, including without limitation, initials, stamped initials, comments, or notations not a part of the original text or photographic reproduction thereof, is a separate document. 13. "PERSON" includes not only natural persons, but also, firms, partnerships,

associations, corporations, and other legal entities, and divisions, departments, or other units thereof. 14. "RELATES TO", "RELATING TO" and "RELATED TO" mean describing,

discussing, concerning, evidencing, reflecting, comprising, illustrating, containing, embodying, constituting, analyzing, stating, identifying, referring to, dealing with, or in any way pertaining to. 15. "COMMUNICATION" means any form of transmittal of information without

limitation as to means of transmittal, including meetings, telephone conversations, correspondence, electronic messages, memoranda, contracts, agreements, and verbal or nonverbal actions intended to or actually conveying information. 16. "DESCRIBE," "DESCRIBE IN DETAIL" and "DESCRIPTION" mean to give a

full and complete explanation of the requested information, including identifying all relevant F SECOND SET OF REQUESTS FOR PRODUCTION OF 3 PLAINTIMFS'TS AND THINGS TO SOFTWARE RIGHTS ARCHIVE, DOCU EN
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circumstances, all relevant dates, all persons involved or having relevant knowledge, all relevant documents, and explaining the significance or the role of each date, person, and document. 17. When referring to a person, "IDENTIFY" and "IDENTIFICATION" means to

give, to the extent known, the person's full name, present or last known address, and, when referring to a natural person, to additionally give the person's present or last known place of employment and title. When referring to a document, "IDENTIFY" and "IDENTIFICATION" means to provide the range of production numbers corresponding to the document or to give, to the extent known, (a) type of document; (b) general subject matter; (c) date of the document; and (d) author(s), addressee(s), and recipient(s). 18. The singular form of a word should be interpreted in the plural as well. Any

pronoun shall be construed to refer to the masculine, feminine, or neutral gender as in each case is most appropriate. The words "and" and "or" shall be construed conjunctively or disjunctively, whichever makes the interrogatory more inclusive. INSTRUCTIONS 1. These requests are continuing pursuant to Rule 26(e) of the Federal Rules of Civil

Procedure and require supplemental production of documents and things if Software Rights Archive discovers responsive documents and things after the date of response hereto despite a diligent effort to provide all responsive documents within the time specified. 2. These requests shall apply to all documents in your possession, custody, or control

at the present time, or coming into your possession, custody, or control during the pendency of this action, and shall include all documents known and available to you regardless of whether such documents are possessed directly by you, any parent, subsidiary, or affiliate, or any of your officers, directors, employees, agents, representative or attorneys. If you know of the existence, past or present, of any documents or things requested below, but are unable to produce such documents or things because they are not presently in your possession, custody, or control, you shall so state and identify such documents or things, and the person who has possession, custody, or control. 3. Documents attached to each other must not be separated. F SECOND SET OF REQUESTS FOR PRODUCTION OF 4 PLAINTIMFS'TS AND THINGS TO SOFTWARE RIGHTS ARCHIVE, DOCU EN
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4.

If no documents are responsive to a particular request, state that no responsive

documents exits. 5. If any request is objected to in part, a complete production to all portions of the

request not objected to should be provided. 6. For any document or thing that has been lost, destroyed, or withheld on any ground,

provide a written statement setting forth, at a minimum: (a) (b) (c) an identification of the document; the nature of the document; the identity of all person(s) from and to whom the document, or its contents, has been communicated; (d) (e) 7. a brief description of the subject matter of the information; and the circumstances of the loss or destruction of the document.

If you decline to produce any document or part thereof based on a claim of

privilege or any other claim, you shall describe the nature and basis of your claim and the information withheld in a manner sufficient to: (a) (b) disclose the facts upon which you rely in asserting your claim; identify the legal and factual ground(s) upon which you rely in withholding the information in sufficient detail so that the Court may make a determination on your claim of privilege; and (c) 8. permit the information withheld to be unambiguously identified.

To the extent these requests seek information that is recorded in any form of

document or thing, including electronically stored documents such as word processing files, voice files, and e-mail, or to the extent these requests seek documents, including electronically stored documents, you are asked to take steps to ensure that all such documents and things are preserved for this litigation, and to take steps to ensure that no responsive electronically stored documents are erased or deleted. Sanctions may be imposed for failure to maintain evidence within your care, custody or control. 5
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REQUESTS FOR DOCUMENTS AND THINGS RELATING TO JURISDICTIONAL ISSUES REQUEST FOR PRODUCTION NO. 15: All DOCUMENTS RELATING TO the corporate structure, organization, and management of YOU (including specifically Software Rights Archive, Inc.), including without limitation YOUR (including specifically Software Rights Archive, Inc.) corporate records, articles of incorporation, and bylaws. REQUEST FOR PRODUCTION NO. 16: DOCUMENTS sufficient to IDENTIFY all the corporate assets of YOU (including specifically Software Rights Archive, Inc.). REQUEST FOR PRODUCTION NO. 17: DOCUMENTS sufficient to IDENTIFY all capital, equity, loans, line of credit, or investment established in or for YOU (including specifically Software Rights Archive, Inc.), including all capital, equity, loans, lines of credit, or investments made in YOU (including specifically Software Rights Archive, Inc.) by L. Daniel Egger. REQUEST FOR PRODUCTION NO. 18: DOCUMENTS sufficient to IDENTIFY all YOUR (including specifically Software Rights Archive, Inc.) past or present employees, partners, agents, officers, owners, and/or directors, including organizational charts, personnel files, start date and end date, and responsibilities. REQUEST FOR PRODUCTION NO. 19: DOCUMENTS sufficient to DESCRIBE YOUR (including specifically Software Rights Archive, Inc.) relationship with L. Daniel Egger, including his role, title, interest in YOU, and compensation at all times (including at all times since January 7, 2004). REQUEST FOR PRODUCTION NO. 20: DOCUMENTS sufficient to IDENTIFY each physical location (i.e., office or other business location) for YOU (including specifically Software Rights Archive, Inc.) and each lease, deed, or other agreement granting YOU use of each such physical location. 6
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REQUEST FOR PRODUCTION NO. 21: DOCUMENTS sufficient to IDENTIFY all estimated and actual revenues, expenses, costs, profits, margins, and sales earned or incurred by YOU (including specifically Software Rights Archive, Inc.) from January 1, 2004, to the present. REQUEST FOR PRODUCTION NO. 22: All DOCUMENTS sufficient to identity each PERSON having any management authority or control over YOU, including such PERSON'S role, title, and interest in YOU (including at all times since January 7, 2004). REQUEST FOR PRODUCTION NO. 23: All of YOUR corporate filings with any federal, state, or local government or government agency. REQUEST FOR PRODUCTION NO. 24: All minutes from every one of YOUR board of directors' meetings. REQUEST FOR PRODUCTION NO. 25: ALL DOCUMENTS RELATING TO YOUR formation and the circumstances surrounding it, including without limitation the role of Daniel Egger in such FORMATION. REQUEST FOR PRODUCTION NO. 26: ALL DOCUMENTS RELATING TO each change in YOUR status or YOUR name, including without limitation all documents describing the name change from Software Rights Archive, LLC. to Software Rights Archive, Inc., the associated circumstances, and the identity of each PERSON involved.

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Dated: December 12, 2008

Respectfully submitted, By: /s/ Thomas B. Walsh, IV Thomas B. Walsh, IV (admitted Pro Hac Vice, [e-mail]) FISH & RICHARDSON P.C. 5000 Bank One Center 1717 Main Street Dallas, Texas 75201 Telephone: [phone] Facsimile: [phone] Juanita R. Brooks (SBN 75934, [e-mail]) Jason W. Wolff (SBN 215819, [e-mail]) FISH & RICHARDSON P.C. 12390 El Camino Real San Diego, California 92130 Telephone: [phone] Facsimile: [phone] Jerry T. Yen (SBN 247988, [e-mail]) FISH & RICHARDSON P.C. 500 Arguello Street, Suite 500 Redwood City, California 94063 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiffs GOOGLE INC. and AOL LLC By: /s/ Richard. S.J. Hung (with permission) 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.

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PLAINTIFFS' SECOND SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS AND THINGS TO SOFTWARE RIGHTS ARCHIVE, LLC Case No. CV 08-03172 RMW (RS)

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By: /s/ Jennifer A. Kash (with permission) 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.

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PROOF OF SERVICE I am employed in the County of San Diego. My business address is Fish & Richardson P.C., 12390 El Camino Real, San Diego, California 92130. I am over the age of 18 and not a party to the foregoing action. I am readily familiar with the business practice at my place of business for collection and processing of correspondence for personal delivery, for mailing with United States Postal Service, for facsimile, and for overnight delivery by Federal Express, Express Mail, or other overnight service. On December 12, 2008, I caused a copy of the following document(s): PLAINTIFFS' SECOND SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS AND THINGS TO SOFTWARE RIGHTS ARCHIVE, LLC to be served on the interested parties in this action by placing a true and correct copy thereof, enclosed in a sealed envelope, and addressed as follows: Lee Landa Kaplan Email: [e-mail] Jeffrey A. Potts Email: [e-mail] Narasa Raju Duvvuri Email: [e-mail] Smyser Kaplan & Veselka 700 Louisiana St., Suite 2300 Houston, TX 77002 Telephone: [phone] Facsimile: [phone] Jay D. Ellwanger Email: [e-mail] DiNovo Price Ellwanger LLP P.O. Box 201690 Austin, TX 78720-1690 Telephone: [phone] Facsimile: [phone] Thomas Frank Smegal, Jr. Email: [e-mail] Knobbe Martens Olson & Bear LLP One Sansome Street, Suite 3500 San Francisco, CA 94114 Telephone: [phone] Facsimile: [phone] Richard S. J. Hung Email: [e-mail] Michael A. Jacobs Email: [e-mail] 10 Attorneys for Defendants L. DANIEL EGGER, SOFTWARE RIGHTS ARCHIVE, LLC, and SITE TECHNOLOGIES, INC.

Attorneys for Defendants L. DANIEL EGGER, SOFTWARE RIGHTS ARCHIVE, LLC, and SITE TECHNOLOGIES, INC.

Attorneys for Defendants L. DANIEL EGGER, SOFTWARE RIGHTS ARCHIVE, LLC, and SITE TECHNOLOGIES, INC.

Attorneys for Plaintiff YAHOO INC.
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Morrison & Foerster LLP 425 Market Street, 34th Floor San Francisco, CA 94105-2482 Telephone: [phone] Facsimile: [phone] Jennifer A. Kash Email: [e-mail] Quinn Emanuel Urquhart Oliver & Hedges LLP 50 California Street, 22nd Floor San Francisco, CA 94111 Telephone: [phone] Facsimile: [phone] Claude M. Stern Email: [e-mail] Quinn Emanuel Urquhart Oliver & Hedges LLP 555 Twin Dolphin Drive, Suite 560 Redwood Shores, CA 94065 Telephone: [phone] Attorneys for Plaintiff IAC SEARCH & MEDIA, INC. and LYCOS, INC.

Attorneys for Plaintiff IAC SEARCH & MEDIA, INC. and LYCOS, INC.

MAIL:

Such correspondence was deposited, postage fully paid, with the United States Postal Service on the same day in the ordinary course of business. Such envelope was delivered by hand to the offices of the addressee. Such document was faxed to the facsimile transmission machine with the facsimile machine number stated above. Upon completion of the transmission, the transmitting machine issued a transmission report showing the transmission was complete and without error. Such document was transmitted by electronic mail to the addressees' email addresses as stated above. Such correspondence was deposited on the same day in the ordinary course of business with a facility regularly maintained by Federal Express. Such correspondence was deposited on the same day in the ordinary course of business with a facility regularly maintained by the United States Postal Service. Such correspondence was given on the same day in the ordinary course of business to an authorized courier or a driver authorized by that courier to receive documents. 11
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PERSONAL: FACSIMILE:

ELECTRONIC MAIL: FEDERAL EXPRESS: EXPRESS MAIL: OVERNIGHT DELIVERY: