Interserve, Inc. et al v. Fusion Garage PTE. LTD

Filing 164

MOTION to Compel Withheld Information and Documents filed by CrunchPad, Inc., Interserve, Inc.. Motion Hearing set for 10/12/2010 10:00 AM in Courtroom 5, 4th Floor, San Jose. (Attachments: # 1 Scherb Declaration, # 2 Proposed Order)(Scherb, Matthew) (Filed on 9/7/2010)

Interserve, Inc. et al v. Fusion Garage PTE. LTD

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Andrew P. Bridges (SBN: 122761) [e-mail] David S. Bloch (SBN: 184530) [e-mail] Matthew A. Scherb (SBN: 237461) [e-mail] WINSTON & STRAWN LLP 101 California Street San Francisco, CA 94111-5802 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiffs INTERSERVE, INC. dba TECHCRUNCH and CRUNCHPAD, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION INTERSERVE, INC. dba TECHCRUNCH, a Delaware corporation, and CRUNCHPAD, INC., a Delaware corporation, Plaintiffs, vs. FUSION GARAGE PTE. LTD., a Singapore company, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV-09-5812 RS (PVT) PLAINTIFFS' MOTION TO COMPEL PRODUCTION OF WITHHELD INFORMATION AND DOCUMENTS Date: Tuesday, October 12, 2010 Time: 10:00 A.M. Place: Courtroom 5, 4th Floor, San Jose Hon. Patricia V. Trumbull

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Mot. to Compel Production of Withheld Information and Documents -- Case No. CV-09-5812 RS (PVT) Dockets.Justia.com

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NOTICE OF MOTION TO ALL PARTIES AND THEIR COUNSEL OF RECORD: Plaintiffs will present this Motion to Compel Production of Withheld Information and Documents on October 12, 2010 at 10:00 A.M., or at any other date and time thereafter convenient to the Court, before the Honorable Patricia V. Trumbull, presiding in Courtroom 5, 4th Floor, of this court located at 280 South First Street, San Jose, California 95113. Plaintiffs rely on the following Memorandum of Points and Authorities, the declaration of Matthew Scherb, the Proposed Order, other pleadings and papers filed in the case, the proceedings at oral argument, and any other matter that the Court deems appropriate.

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MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION AND FACTUAL BACKGROUND For over seven months, Defendant Fusion Garage has refused to produce information and documents responsive to Plaintiffs' discovery requests and relevant to this case on the ground that they are "highly proprietary" or "trade secret" information. Defendant persists in refusing to comply with its discovery obligations notwithstanding the existence of a protective order in this case, which expressly protects confidential information and trade secrets and which allows Defendant to designate materials and information as "attorneys eyes only" as appropriate. On January 7, 2010, this Court granted Plaintiffs' request for expedited discovery and ordered Fusion Garage to respond to Plaintiffs' first set of document requests (numbers 1-49) and first set of interrogatories within 30 days. (Dkt. 19.) On February 5, 2010, Fusion Garage moved for a protective order under California's trade secret statute, Cal. Code Civ. Proc. § 2019, to shield it from producing documents containing its trade secrets until Plaintiffs disclosed the business ideas underlying its claim for misappropriation of business ideas. (Dkt. 23.) Despite the fact that Plaintiffs never alleged a trade secret claim and that section 2019 did not govern, the Court, on April 9, 2010, adopted the provision as a case management tool and ordered Plaintiffs to provide a statement. It made the order with clear reference to the misappropriation claim, which it found was not preempted for purposes of the motion. (Dkt. 62.) Plaintiffs provided a detailed seven-page, 33paragraph statement on April 23, 2010, but Fusion Garage was unsatisfied. On April 30, 2010, Fusion Garage moved for a renewed protective order, claiming that Plaintiffs' statement was inadequate. (Dkt. 93.) The Court took that matter under submission following argument on June 30, 2010, and the parties await a ruling. With the renewed motion pending before the Court, Fusion Garage, on July 22, 2010 again interposed a number of "trade secret" objections to Plaintiffs' fifth set of production requests (numbers 53-83). Meanwhile, discovery in the case has proceeded asymmetrically. While Fusion Garage withholds emails, design documents, computer code, and other materials that it unilaterally considers to contain its "highly proprietary information," Plaintiffs have no similar protection. Fusion Garage, benefiting from the asymmetry, has deposed several persons related to TechCrunch and CrunchPad, 1
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Inc. Although Plaintiffs took one deposition in connection with their preliminary injunction motion, Fusion Garage has effectively delayed Plaintiffs from taking further depositions with its successive protective order motions. Plaintiffs expected the delay and asymmetry to end upon Judge Seeborg's entry of an order on August 24, 2010 dismissing Plaintiffs' claim for misappropriation of business ideas. (Dkt. 162.) With the misappropriation of business ideas claim out of the case, Fusion Garage's protective order motion ­ seeking a more detailed statement of misappropriated business ideas before so called "trade secret" discovery ­ no longer had a purpose and became moot. On August 25, 2010, Plaintiffs asked Fusion Garage to concede mootness and withdraw the pending protective order motion. It declined: We have consulted with our client, and we do not intend to withdraw this motion. We made clear in our motion practice and during the substantial hearing on this motion that the business ideas claim was not the only claim Magistrate Judge Trumball's order applies to. Discovery taken thus far has only further confirmed that TechCrunch has no basis for seeking source code or other detailed technical documentation in this case. Please let us know if you'd like to discuss further. (Declaration of Matthew Scherb ("Scherb Decl.") ¶ 2 & Ex. A.) Fusion Garage, in this email, claimed, for the first time, that its motion actually sought to prevent disclosure of source code or highly proprietary information entirely and forever, without respect to whether those documents include trade secrets or whether Plaintiffs ever produce a proper statement of business ideas, which they have. This is at direct odds with the statement of issues in Fusion Garage's renewed protective order motion: "Should Plaintiffs be required to comply with the Court's April 9, 2010 order and further identify the alleged trade secrets (or business ideas) or other confidential information that they allege Fusion Garage misappropriated before Fusion Garage is required to provide discovery of its confidential, proprietary, and trade secret information?" (Dkt. 93 at 1.) The email also fits a pattern of delay. Rather than raising all of its issues related to source code and highly proprietary information at once in a single motion, Fusion Garage now appears to have dealt with its trade secret qualms separately from other objections that it will also invoke later, burdening this Court (and prejudicing Plaintiffs) with unnecessarily drawn-out court proceedings. After receiving the email from Fusion Garage's counsel, Plaintiffs sought a telephonic conference to identify the materials Fusion Garage was continuing to withhold (in order to determine 2
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the scope of the current discovery dispute) and to learn whether Fusion Garage would continue refuse to produce source code and highly proprietary information even after a denial of the protective order motion. During the call on September 2, 2010, Fusion Garage was unable to give a final position, but asked counsel for Plaintiffs to put Plaintiffs' position in writing so that Fusion Garage could more effectively provide a response. Plaintiffs' counsel did so and asked for a response. Fusion Garage made no response. (Scherb Decl. ¶ 3.) Plaintiffs now file this motion in order to push forward with critical threshold discovery in a case that has been pending for nine months. II. STATEMENT OF THE ISSUES Whether Fusion Garage may continue to withhold relevant documents and discovery responses simply because those documents or responses would contain trade secrets or highly proprietary information now that (1) there is no longer a claim for misappropriation of business ideas, (2) Plaintiffs have in any event provided an adequate section 2019 statement, and (3) a comprehensive confidentiality protective order is in place. III. DISCOVERY REQUESTS AT ISSUE For the sake of clarity, Plaintiffs reprint the requests and responses at issue in the Appendix to this Memorandum. IV. ARGUMENT Discovery under the Federal Rules is "accorded a broad and liberal treatment." Hickman v. Taylor, 329 U.S. 495, 507 (1947). Rule 26 provides that "[p]arties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party. . . . Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Fed. R. Civ. P. 26(b)(1). A party may move to compel the production or inspection of documents under Rule 34. Fed. R. Civ. P. 37(a)(3). The party resisting discovery bears the burden of showing why it should be denied. Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975). And courts will grant a motion to compel disclosure so long as the moving party seeks relevant information that does not cause the opposing party "undue burden or expense." Fed. R. Civ. P. 26(c)(1); Sullivan v. Kelly 3
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Servs., No. C-07-2784, 2008 U.S. Dist. LEXIS 29318, *3-4 (N.D. Cal. Mar. 4, 2008) (granting motion to compel disclosure of relevant information that is not "overly burdensome"). Parties may not refuse discovery simply because the requested information does not fit into their legal theories. See Humphreys v. Regents of University of Cal., No. 04-3808, 2006 WL 870963, at *2 (N.D. Cal. Apr. 3, 2006) ("[D]efendants are not allowed to limit discovery based merely upon their theory of the case."). A. Now That the Court Has Dismissed the Misappropriation Claim, there is No Reason to Delay Discovery of All of Defendant's Withheld Information and Documents. The purpose of the Court's April 9, 2010 protective order was case management (Dkt. 62 at 5), not total preclusion of discovery, and certainly not grating lopsided permission for one side to proceed with discovery while thwarting the other side. The Court required Plaintiffs to "identify their business ideas in advance of obtaining any discovery related to defendant FG's source code." Fusion Garage's renewed protective order motion similarly did not profess to seek a total bar against discovery of source code or highly proprietary information. In fact, the issue in Fusion Garage's own words was whether Plaintiffs must "further identify the alleged trade secrets (or business ideas) or other confidential information that they allege Fusion Garage misappropriated before Fusion Garage is required to provide discovery of its confidential, proprietary, and trade secret information." (Dkt. 93 at 1.) Now that the Court has dismissed Plaintiffs' claim for misappropriation of business ideas with prejudice (Dkt. 162), a protective order intended to protect Fusion Garage from surprise pleading of "new" allegedly misappropriated business ideas, based on a defendant's previous disclosure, serves no purpose. If Plaintiffs had never brought a misappropriation claim in the first place, Fusion Garage would not have obtained the April 9, 2010 protective order. This is no longer a misappropriation case of any kind, and Fusion Garage has no basis for continuing to demand a statement of misappropriated business ideas more to its liking.1 Fusion Garage's pending motion for renewed In any case, Plaintiffs' current 33-paragraph, seven-page statement is adequate, for the reasons set forth in Plaintiffs' papers in opposition to Fusion Garage's renewed protective order motion. 4
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protective order is therefore moot. Illustrating how Fusion Garage's motion is moot and demonstrating that the time for discovery delays should end is Bryant v. Mattel, Inc., No. 04-09049, 2007 WL 5430888, at *4 n.3 (C.D. Cal. May 18, 2007). Even when a misappropriation claim coexists with other claims and shares a nucleus of facts with them, some courts hold that section 2019.210 does not allow a reluctant defendant to withhold its trade secrets, because they would be relevant to the nonmisappropriation claims. Id. In Bryant, when drawings and designs for unreleased products were relevant to both a trade secret and other claims, including copyright infringement, the Court rejected a request for delayed discovery under Section 2019.210. Id. This case is much simpler than Bryant, because there is no longer a coexisting misappropriation claim of any kind. B. The Documents and Information Plaintiffs Request are Relevant and Properly Discoverable. Plaintiffs' document requests seek relevant, discoverable information. For several requests, Fusion Garage has already conceded they seek discoverable information, agreeing to produce responsive documents, but explicitly excepting any that consist of source code or highly proprietary information. (See, e.g., RFPs 53-57.) For other (e.g., RFPs 40, 49), Fusion Garage acknowledges it is under an obligation to produce documents based on previous Court orders but takes exception to producing responsive documents that contain highly confidential proprietary information. Request for production 53 seeks documents that contain the term JooJoo ­ the name of Fusion Garage's web tablet ­ from any date before Fusion Garage aborted the collaboration. Any such document would be evidence of breach of fiduciary duty and fraud. Request for production 40 seeks all documents that mention the JooJoo and also mention the CrunchPad, TechCrunch, or TechCrunch's Mr. Arrington. Such documents are highly relevant. Production requests 4-5 and 60-61 seek information about what, if any, work on a tablet Fusion Garage performed outside of its collaboration with Plaintiffs, which would bear directly on Plaintiffs' claims for breach of fiduciary duty and fraud. Production requests 12-15, 17-20, 23-24, 45-56, 49, 67, 78-81 all seek information about Fusion Garage's efforts to design, develop, write software for, test, create documentation for, 5
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market, advertise, and obtain government approvals for the CrunchPad or JooJoo web tablet. These documents will show when and how Fusion Garage began to develop and market its JooJoo apart from Plaintiffs in breach of its fiduciary duty. Similarly, production requests 32-33, 43-44, 54-57, and 59 seek communications with vendors, contractors, suppliers, and payment processors for the JooJoo and CrunchPad, and communications regarding any claims to intellectual property in the JooJoo or CrunchPad. Again, these documents will show when and how Fusion Garage began to develop its rival tablet apart from Plaintiffs. Production request 76 seeks documents sufficient to identify any products of Fusion Garage other than a web tablet. This information is important to valuing the Fusion Garage business for purposes of computing damages. Interrogatory 1 asks Fusion Garage to identify all components in the JooJoo while Interrogatory 2 asks Fusion Garage to identify the designers and suppliers of JooJoo components. Knowing the components and the business associates of Fusion Garage will enable Plaintiffs to pursue appropriate avenues of discovery related to how and when Fusion Garage formed relationships with business associates secretly without Plaintiffs' knowledge. Source Code. Although source code may be called for by other requests for production, requests 37 and 38 explicitly request all versions of source code, object code, and executable files for the CrunchPad and JooJoo. This computer code will reveal Fusion Garage's progress on the JooJoo relative to its joint venture with Plaintiffs. Source code itself can show dates where the code was modified. i4i Ltd. Partnership v. Microsoft Corp., 670 F. Supp. 2d 568, 586 (E.D. Tex. 2009). Source code is also likely to have embedded comments that bear not only on the technical nature of the code, but also on the circumstances of its creation, including any venture or dealings with Plaintiffs. The Ninth Circuit recently explained source code comments: Programmer's notes or comments are annotations within the source code that comment on the source code and try to make it easier to understand. While such comments are typically ignored by the compiler or interpreter when compiling source code because they do not affect the operation of the object code, several of JustMed's witnesses testified that they considered the comments part of the software.

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JustMed, Inc. v. Byce, 600 F.3d 1118, 1123 (9th Cir. 2010). In Phillip M. Adams & Associates, L.L.C. v. Winbond Electornics Corp., No. 05-64, 2010 WL 2977228, at *2 (D. Utah July 21, 2010), the plaintiff accused defendant of destroying source code with comments showing illegal behavior. The Court would allow plaintiff to make its arguments about the lack of code comments at trial. Here, mention in source code comments of the original brand name, CrunchPad; Fusion Garage's chosen brand name, JooJoo; or of TechCrunch or CrunchPad, Inc., or of their personnel would be extremely relevant. In addition, Plaintiffs anticipate that Fusion Garage, during the damages phase of this case, will argue that at some point a new version of the JooJoo will turn a corner and be substantially based upon source code or hardware that was not in use or selected during the parties' collaboration. Fusion Garage's law firm litigated the Ninth Circuit case that produced the recent decision Mattel, Inc. v. MGA Entertainment, Inc., 2010 WL 2853761 (9th Cir. July 22, 2010). In that case, the Ninth Circuit held that the district court abused its discretion in awarding Mattel the fruits of the defendant's labor directly related to a derivative but "subsequent generation" of a product it unlawfully developed and sold. Id. at *4 -5. Plaintiffs anticipate Fusion Garage arguing, based on Mattel, that Plaintiffs should not obtain profits from sales of newer versions of the JooJoo as part of a damages award. If Fusion Garage makes this argument, challenging its factual basis might well require a source code comparison. It would be inequitable for Fusion Garage to assert it had created a second-generation product subject to a different damages calculation without revealing how its product had changed. Finally, the Court has already weighed in on the relevance and discoverability of source code. (Dkt. 62 at 6) ("Defendant Fusion Garage does not dispute that metadata from the source code may be relevant to timing.") The Court's order merely dealt with case management issues by sequencing some discovery, but those case management issues are no longer present. The materials and information that Plaintiffs have requested are relevant. Fusion Garage's attempt to block discovery of this information over the course of the last seven months has never

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been about relevance or burden or any other objection save its trade secret objection. Now that the objection is moot, the Court should order immediate production.2 C. Plaintiffs' Trade Secret Objection Fails Because the Stipulated Protective Order in This Case Offers Adequate Protection for Trade Secret and Source Code Materials. That Fusion Garage source code or other materials might contain "highly proprietary information" does not place those materials beyond the reach of discovery. Source code and other trade secrets are routinely produced under typical confidentiality protective orders. This Court ordered production of source code in Echostar Satellite LLC v. Freetech, Inc., No. 07-6124, slip. op. at 3-4 (N.D. Cal. May 18, 2009) (Seeborg, M.J.) (Scherb Decl. Ex. B) and stated that despite "understandabl[e]" concerns over "this sensitive material," "the stipulated protective order should address concerns regarding improper use of such information." The Court continued: "Protective orders in general are adequate to address proprietary issues particularly in the absence of any showing, as in this case, that the documents here go beyond the type of sensitive materials implicated in other litigation in this district." Id. at 4. Other courts agree that protective orders are adequate. E.g., MSC Software Corp. v. Altair Engineering, Inc., No. 07-12807, 2008 WL 4940361, at *6 (E.D. Mich. Sep. 9, 2008) (standard AEO protective order appropriate); Fair Isaac Corp. v. Equifax, Inc., No. 06-4112, 2007 WL 2791168, at *6 (D. Minn. Sept. 25, 2007) (rejecting convoluted escrow arrangement that would hamper experts' analysis of computer code). // // // // // // Counsel understands that Fusion Garage has already collected responsive "highly proprietary" materials and could be in a position to produce them quickly. 8
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V.

CONCLUSION There is no longer any basis for Fusion Garage to withhold responsive and relevant

information on the ground that it may contain highly proprietary information. Fusion Garage's renewed protective order motion is moot, Plaintiffs' misappropriation of business ideas claim is out of the case, and the Court-approved protective order in this case is entirely adequate to protect Fusion Garage's intellectual property. The Court should order immediate production of all documents responsive to requests for production 4-5, 12-15, 17-20, 23-24, 32-33, 37-38, 40, 43-46, 49, 53-57, 59, 60-61, 67, 76 and 78-81 and should require a full response to interrogatories 1-2. Respectfully submitted, Dated: September 7, 2010. WINSTON & STRAWN LLP

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Winston & Strawn LLP

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/ s/ Andrew P. Bridges David S. Bloch Matthew A. Scherb Attorneys for Plaintiffs

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APPENDIX REQUEST FOR PRODUCTION NO. 4: All documents concerning work by you or on your behalf to develop a tablet computer before September 10, 2008. SUPPLEMENTAL RESPONSE TO REQUEST FOR PRODUCTION NO. 4: Fusion Garage incorporates each of its General Objections as expressly set forth therein. Fusion Garage objects that this request seeks highly proprietary information and/or source code, but Plaintiffs have not submitted an adequate Statement of Misappropriated Business Ideas in accordance with the Court's Order of April 9, 2010. (See Dkt. 62). Fusion Garage further objects to this request on the ground that it is unduly burdensome, harassing, and overbroad with respect to scope. Fusion Garage further objects to this request on the ground that it seeks information protected by the attorney-client privilege, the work-product doctrine, and other applicable privileges. Fusion Garage further objects to this request on the ground that it is vague and ambiguous. REQUEST FOR PRODUCTION NO. 5: All documents concerning work by you or on your behalf to develop a tablet computer separately from TechCrunch or Michael Arrington. SUPPLEMENTAL RESPONSE TO REQUEST FOR PRODUCTION NO. 5: Fusion Garage incorporates each of its General Objections as expressly set forth therein. Fusion Garage objects that this request seeks highly proprietary information and/or source code, but Plaintiffs have not submitted an adequate Statement of Misappropriated Business Ideas in accordance with the Court's Order of April 9, 2010. (See Dkt. 62). Fusion Garage further objects to this request on the ground that it is unduly burdensome, harassing, and overbroad with respect to scope. Fusion Garage further objects to this request on the ground that it seeks information protected by the attorney-client privilege, the work-product doctrine, and other applicable privileges. Fusion Garage further objects to this request on the ground that it is vague and ambiguous. REQUEST FOR PRODUCTION NO. 12: All documents concerning the design, development or writing of software for the CrunchPad. SUPPLEMENTAL RESPONSE TO REQUEST FOR PRODUCTION NO. 12: Fusion Garage incorporates each of its General Objections as expressly set forth therein. Fusion Garage objects to the defined term "CrunchPad" as vague and ambiguous as it purports to encompass Fusion Garage's products, including the JooJoo. Fusion Garage further objects to this request to the extent it seeks information regarding the "CrunchPad," as Fusion Garage understands that no such device exists. Any documents that Fusion Garage agrees to produce in response to this request shall not be deemed an admission as to the existence of the CrunchPad or that the JooJoo is related to, or a successor to, the alleged CrunchPad. Fusion Garage further objects that Plaintiffs are trying to use this request to elicit a response or objection that a Fusion Garage product is, or is related to, the CrunchPad. Fusion Garage further objects to this request on the ground that it assumes facts not in evidence; namely, the existence of the "CrunchPad" device. It is Fusion Garage's understanding that there is no such device. Fusion Garage objects that this request seeks highly proprietary information and/or source code, but Plaintiffs have not submitted an adequate Statement of Misappropriated Business Ideas in accordance with the Court's Order of April 9, 2010. (See Dkt. 62). Fusion Garage further objects to this request on the ground that it is vague and ambiguous. Fusion Garage further objects to this request on the ground that it seeks information which is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence, as there is no evidence that Plaintiffs contributed any software.

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REQUEST FOR PRODUCTION NO. 13: All documents concerning the design, development or writing of software for the JooJoo. RESPONSE TO REQUEST FOR PRODUCTION NO. 13: Fusion Garage incorporates each of its General Objections as expressly set forth therein. Fusion Garage objects that this request seeks highly proprietary information and/or source code, but Plaintiffs have not submitted an adequate Statement of Misappropriated Business Ideas in accordance with the Court's Order of April 9, 2010. (See Dkt. 62). Fusion Garage further objects to this request on the ground that it is vague and ambiguous. Fusion Garage further objects to this request on the ground that it seeks information which is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence, as there is no evidence that Plaintiffs contributed any software. REQUEST FOR PRODUCTION NO. 14: All documents concerning the design of the CrunchPad, including but not limited to industrial design, hardware, software, feature set, and user interface. SUPPLEMENTAL RESPONSE TO REQUEST FOR PRODUCTION NO. 14: Fusion Garage incorporates each of its General Objections as expressly set forth therein. Fusion Garage objects to the defined term "CrunchPad" as vague and ambiguous as it purports to encompass Fusion Garage's products, including the JooJoo. Fusion Garage further objects to this request to the extent it seeks information regarding the "CrunchPad," as Fusion Garage understands that no such device exists. Any documents that Fusion Garage agrees to produce in response to this request shall not be deemed an admission as to the existence of the CrunchPad or that the JooJoo is related to, or a successor to, the alleged CrunchPad. Fusion Garage further objects that Plaintiffs are trying to use this request to elicit a response or objection that a Fusion Garage product is, or is related to, the CrunchPad. Fusion Garage further objects to this request on the ground that it assumes facts not in evidence; namely, the existence of the "CrunchPad" device. It is Fusion Garage's understanding that there is no such device. Fusion Garage further objects that this request seeks highly proprietary information and/or source code, but Plaintiffs have not submitted an adequate Statement of Misappropriated Business Ideas in accordance with the Court's Order of April 9, 2010. (See Dkt. 62). Fusion Garage further objects to this request to the extent that it seeks information that is in the custody or control of Plaintiffs and/or equally available from Plaintiffs, as Plaintiffs assert that the CrunchPad is their device. REQUEST FOR PRODUCTION NO. 15: All documents concerning the design of the JooJoo, including but not limited to industrial design, hardware, software, feature set, and user interface. SUPPLEMENTAL RESPONSE TO REQUEST FOR PRODUCTION NO 15: Fusion Garage incorporates each of its General Objections as expressly set forth therein. Fusion Garage objects that this request seeks highly proprietary information and/or source code, but Plaintiffs have not submitted an adequate Statement of Misappropriated Business Ideas in accordance with the Court's Order of April 9, 2010. (See Dkt. 62). Fusion Garage further objects to this request on the ground that it is unduly burdensome, harassing, and overbroad with respect to scope. Fusion Garage further objects that this request is vague and ambiguous. REQUEST FOR PRODUCTION NO. 17: All documents concerning user experience testing of the CrunchPad. SUPPLEMENTAL RESPONSE TO REQUEST FOR PRODUCTION NO. 17: Fusion Garage incorporates each of its General Objections as expressly set forth therein. Fusion Garage objects to the defined term "CrunchPad" as vague and ambiguous as it purports to encompass Fusion Garage's products, including the JooJoo. Fusion Garage further objects to this request to the extent it seeks information regarding the "CrunchPad," as Fusion Garage understands that no such device exists. Any documents that Fusion Garage agrees to produce in response to this request shall not be deemed an admission as to the A-2
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101 California Street San Francisco, CA 94111-5802

existence of the CrunchPad or that the JooJoo is related to, or a successor to, the alleged CrunchPad. Fusion Garage further objects that Plaintiffs are trying to use this request to elicit a response or objection that a Fusion Garage product is, or is related to, the CrunchPad. Fusion Garage further objects to this request on the ground that it assumes facts not in evidence; namely, the existence of the "CrunchPad" device. It is Fusion Garage's understanding that there is no such device. Fusion Garage objects that this request seeks highly proprietary information and/or source code, but Plaintiffs have not submitted an adequate Statement of Misappropriated Business Ideas in accordance with the Court's Order of April 9, 2010. (See Dkt. 62). Fusion Garage further objects to this request to the extent that it seeks information that is in the custody or control of Plaintiffs and/or equally available from Plaintiffs, as Plaintiffs assert that the CrunchPad is their device. Fusion Garage further objects to this request on the ground that it is vague and ambiguous. REQUEST FOR PRODUCTION NO. 18: All documents concerning user experience testing of the JooJoo. SUPPLEMENTAL RESPONSE TO REQUEST FOR PRODUCTION NO. 18: Fusion Garage incorporates each of its General Objections as expressly set forth therein. Fusion Garage objects that this request seeks highly proprietary information and/or source code, but Plaintiffs have not submitted an adequate Statement of Misappropriated Business Ideas in accordance with the Court's Order of April 9, 2010. (See Dkt. 62). Fusion Garage objects to this request on the ground that it is vague and ambiguous. Fusion Garage further objects to this request on the ground that it is unduly burdensome, harassing, and overbroad with respect to scope. REQUEST FOR PRODUCTION NO. 19: All documents concerning user documentation for the CrunchPad. SUPPLEMENTAL RESPONSE TO REQUEST FOR PRODUCTION NO. 19: Fusion Garage incorporates each of its General Objections as expressly set forth therein. Fusion Garage objects to the defined term "CrunchPad" as vague and ambiguous as it purports to encompass Fusion Garage's products, including the JooJoo. Fusion Garage further objects to this request to the extent it seeks information regarding the "CrunchPad," as Fusion Garage understands that no such device exists. Any documents that Fusion Garage agrees to produce in response to this request shall not be deemed an admission as to the existence of the CrunchPad or that the JooJoo is related to, or a successor to, the alleged CrunchPad. Fusion Garage further objects that Plaintiffs are trying to use this request to elicit a response or objection that a Fusion Garage product is, or is related to, the CrunchPad. Fusion Garage further objects to this request on the ground that it assumes facts not in evidence; namely, the existence of the "CrunchPad" device. It is Fusion Garage's understanding that there is no such device. Fusion Garage further objects to this request on the ground that it is vague and ambiguous as to the term "user documentation." Fusion Garage objects that this request seeks highly proprietary information and/or source code, but Plaintiffs have not submitted an adequate Statement of Misappropriated Business Ideas in accordance with the Court's Order of April 9, 2010. (See Dkt. 62). Fusion Garage further objects to this request to the extent that it seeks information that is in the custody or control of Plaintiffs and/or equally available from Plaintiffs, as Plaintiffs assert that the CrunchPad is their device. REQUEST FOR PRODUCTION NO. 20: All documents concerning user documentation for the JooJoo. SUPPLEMENTAL RESPONSE TO REQUEST FOR PRODUCTION NO 20: Fusion Garage incorporates each of its General Objections as expressly set forth therein. Fusion Garage objects to this request on the ground that it is vague and ambiguous as to the term "user documentation." A-3
Mot. to Compel Production of Withheld Information and Documents -- Case No. CV-09-5812 RS (PVT)

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Winston & Strawn LLP

1 2 3 4 5 6 7 8 9 10
101 California Street San Francisco, CA 94111-5802

Fusion Garage further objects that this request seeks highly proprietary information and/or source code, but Plaintiffs have not submitted an adequate Statement of Misappropriated Business Ideas in accordance with the Court's Order of April 9, 2010. (See Dkt. 62). Fusion Garage further objects to this request on the ground that it is unduly burdensome, harassing, and overbroad with respect to scope. REQUEST FOR PRODUCTION NO. 23: All documents concerning plans for the development, design, manufacturing, marketing, advertising and promotion, and distribution of the CrunchPad. SUPPLEMENTAL RESPONSE TO REQUEST FOR PRODUCTION NO. 23: Fusion Garage incorporates each of its General Objections as expressly set forth therein. Fusion Garage objects to the defined term "CrunchPad" as vague and ambiguous as it purports to encompass Fusion Garage's products, including the JooJoo. Fusion Garage further objects to this request to the extent it seeks information regarding the "CrunchPad," as Fusion Garage understands that no such device exists. Any documents that Fusion Garage agrees to produce in response to this request shall not be deemed an admission as to the existence of the CrunchPad or that the JooJoo is related to, or a successor to, the alleged CrunchPad. Fusion Garage further objects that Plaintiffs are trying to use this request to elicit a response or objection that a Fusion Garage product is, or is related to, the CrunchPad. Fusion Garage further objects to this request on the ground that it assumes facts not in evidence; namely, the existence of the "CrunchPad" device. It is Fusion Garage's understanding that there is no such device. Fusion Garage further objects that this request seeks highly proprietary information and/or source code, but Plaintiffs have not submitted an adequate Statement of Misappropriated Business Ideas in accordance with the Court's Order of April 9, 2010. (See Dkt. 62). Fusion Garage further objects to this request to the extent that it seeks information that is in the custody or control of Plaintiffs and/or equally available from Plaintiffs, as Plaintiffs assert that the CrunchPad is their device. Fusion Garage further objects to this request on the ground that it is unduly burdensome, harassing, and overbroad (in light of the definition of "CrunchPad") with respect to scope. REQUEST FOR PRODUCTION NO. 24: All documents concerning plans for the development, design, manufacturing, marketing, advertising and promotion, and distribution of the JooJoo. SUPPLEMENTAL RESPONSE TO REQUEST FOR PRODUCTION NO. 24: Fusion Garage incorporates each of its General Objections as expressly set forth therein. Fusion Garage objects that this request seeks highly proprietary information and/or source code, but Plaintiffs have not submitted an adequate Statement of Misappropriated Business Ideas in accordance with the Court's Order of April 9, 2010. (See Dkt. 62). Fusion Garage further objects to this request on the ground that it is unduly burdensome, harassing, and overbroad with respect to scope. Fusion Garage further objects to this request on the ground that it is vague and ambiguous as to the term "development, design, [and] manufacturing." REQUEST FOR PRODUCTION NO. 32: All documents evidencing or concerning communications concerning intellectual property in the CrunchPad. SUPPLEMENTAL RESPONSE TO REQUEST FOR PRODUCTION NO. 32: Fusion Garage incorporates each of its General Objections as expressly set forth therein. Fusion Garage objects to the defined term "CrunchPad" as vague and ambiguous as it purports to encompass Fusion Garage's products, including the JooJoo. Fusion Garage further objects to this request to the extent it seeks information regarding the "CrunchPad," as Fusion Garage understands that no such device exists. Any documents that Fusion Garage agrees to produce in response to this request shall not be deemed an admission as to the existence of the CrunchPad or that the JooJoo is related to, or a successor to, the alleged A-4
Mot. to Compel Production of Withheld Information and Documents -- Case No. CV-09-5812 RS (PVT)

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Winston & Strawn LLP

1 2 3 4 5 6 7 8 9 10
101 California Street San Francisco, CA 94111-5802

CrunchPad. Fusion Garage further objects that Plaintiffs are trying to use this request to elicit a response or objection that a Fusion Garage product is, or is related to, the CrunchPad. Fusion Garage further objects to this request on the ground that it assumes facts not in evidence; namely, the existence of the "CrunchPad" device. It is Fusion Garage's understanding that there is no such device. Fusion Garage objects that this request seeks highly proprietary information and/or source code, but Plaintiffs have not submitted an adequate Statement of Misappropriated Business Ideas in accordance with the Court's Order of April 9, 2010. (See Dkt. 62). Fusion Garage further objects to this request on the ground that it seeks information protected by the attorney-client privilege, the work-product doctrine, and other applicable privileges. Fusion Garage further objects to this request to the extent that it seeks information that is in the custody or control of Plaintiffs and/or equally available from Plaintiffs, as Plaintiffs assert that the CrunchPad is their device. REQUEST FOR PRODUCTION NO. 33: All documents evidencing or concerning communications concerning intellectual property in the JooJoo. SUPPLEMENTAL RESPONSE TO REQUEST FOR PRODUCTION NO. 33: Fusion Garage incorporates each of its General Objections as expressly set forth therein. Fusion Garage objects that this request seeks highly proprietary information and/or source code, but Plaintiffs have not submitted an adequate Statement of Misappropriated Business Ideas in accordance with the Court's Order of April 9, 2010. (See Dkt. 62). Fusion Garage further objects to this request on the ground that it seeks information protected by the attorney-client privilege, the work-product doctrine, and other applicable privileges. Fusion Garage objects that this request is overbroad, unduly burdensome, and harassing. Fusion Garage objects that this request is vague and ambiguous. REQUEST FOR PRODUCTION NO. 37: A complete copy of all versions of the source codes, object codes, and executables for the CrunchPad. SUPPLEMENTAL RESPONSE TO REQUEST FOR PRODUCTION NO. 37: Fusion Garage incorporates each of its General Objections as expressly set forth therein. Fusion Garage objects to the defined term "CrunchPad" as vague and ambiguous as it purports to encompass Fusion Garage's products, including the JooJoo. Fusion Garage further objects to this request to the extent it seeks information regarding the "CrunchPad," as Fusion Garage understands that no such device exists. Any documents that Fusion Garage agrees to produce in response to this request shall not be deemed an admission as to the existence of the CrunchPad or that the JooJoo is related to, or a successor to, the alleged CrunchPad. Fusion Garage further objects that Plaintiffs are trying to use this request to elicit a response or objection that a Fusion Garage product is, or is related to, the CrunchPad. Fusion Garage further objects to this request on the ground that it assumes facts not in evidence; namely, the existence of the "CrunchPad" device. It is Fusion Garage's understanding that there is no such device. Fusion Garage further objects that this request seeks highly proprietary information and/or source code, but Plaintiffs have not submitted an adequate Statement of Misappropriated Business Ideas in accordance with the Court's Order of April 9, 2010. (See Dkt. 62). Fusion Garage further objects to this request on the ground that it is vague and ambiguous. Fusion Garage further objects to this request on the ground that it seeks information which is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence, as there is no evidence that Plaintiffs contributed any source code, object codes, or executables. REQUEST FOR PRODUCTION NO. 38: A complete copy of all versions of the source codes, object codes, and executables for the JooJoo. A-5
Mot. to Compel Production of Withheld Information and Documents -- Case No. CV-09-5812 RS (PVT)

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Winston & Strawn LLP

1 2 3 4 5 6 7 8 9 10
101 California Street San Francisco, CA 94111-5802

SUPPLEMENTAL RESPONSE TO REQUEST FOR PRODUCTION NO 38: Fusion Garage incorporates each of its General Objections as expressly set forth therein. Fusion Garage objects that this request seeks highly proprietary information and/or source code, but Plaintiffs have not submitted an adequate Statement of Misappropriated Business Ideas in accordance with the Court's Order of April 9, 2010. (See Dkt. 62). Fusion Garage further objects to this request on the ground that it is vague and ambiguous. Fusion Garage further objects to this request on the ground that it seeks information which is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence, as there is no evidence that Plaintiffs contributed any source code, object codes, or executables. Fusion Garage further objects that the request is overbroad, unduly burdensome, and harassing. REQUEST FOR PRODUCTION NO. 40: All documents that mention both (a) the JooJoo and (b) the CrunchPad, TechCrunch, or Michael Arrington. SUPPLEMENTAL RESPONSE TO REQUEST FOR PRODUCTION NO 40: Fusion Garage incorporates each of its General Objections as expressly set forth therein. Fusion Garage objects to this request on the ground that it seeks information protected by the attorney-client privilege, the work-product doctrine, and other applicable privileges. Fusion Garage further objects to this request on the ground that it is unduly burdensome and overbroad with respect to scope. Fusion Garage further objects that this request is vague, ambiguous, and incomprehensible, particularly in light of the definitions of the terms this request uses. Subject to the foregoing general and specific objections, Fusion Garage has complied with the Court's Order of April 9, 2010 (Dkt. 61) to produce documents responsive to this request, to the extent that such documents do not disclose Fusion Garage's highly proprietary information. REQUEST FOR PRODUCTION NO. 43: All documents concerning communications with any vendors, contractors, or suppliers, including but not limited to Pegatron, relating to the JooJoo. SUPPLEMENTAL RESPONSE TO REQUEST FOR PRODUCTION NO. 43: Fusion Garage incorporates each of its General Objections as expressly set forth therein. Fusion Garage Objects that this request seeks highly proprietary information and/or source code, but Plaintiffs have not submitted an adequate Statement of Misappropriated Business Ideas in accordance with the Court's Order of April 9, 2010. (See Dkt. 62). Fusion Garage further objects to this request on the ground that it seeks confidential, proprietary, and/or business-sensitive material of Fusion Garage and no protective order is in place in this action. Fusion Garage further objects that this request seeks documents that are neither relevant nor reasonably calculated to lead to the discovery of admissible information. Subject to the foregoing general and specific objections, Fusion Garage has complied with the Court's Order of April 9, 2010 (Dkt. 61) to produce documents responsive to this request, to the extent that such documents do not disclose Fusion Garage's highly proprietary information. REQUEST FOR PRODUCTION NO. 44: All documents concerning communications with any vendors, contractors, or suppliers, including but not limited to Pegatron, concerning the CrunchPad or the project to develop the CrunchPad. SUPPLEMENTAL RESPONSE TO REQUEST FOR PRODUCTION NO. 44: Fusion Garage incorporates each of its General Objections as expressly set forth therein. Fusion Garage objects that this request seeks highly proprietary information and/or source code, but Plaintiffs have not submitted an adequate Statement of Misappropriated Business Ideas in accordance with the Court's Order of April 9, 2010. (See Dkt. 62). Fusion Garage further objects to the defined term "CrunchPad" as vague and ambiguous as it purports to encompass Fusion Garage's products, including the JooJoo. A-6
Mot. to Compel Production of Withheld Information and Documents -- Case No. CV-09-5812 RS (PVT)

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Winston & Strawn LLP

1 2 3 4 5 6 7 8 9 10
101 California Street San Francisco, CA 94111-5802

Fusion Garage further objects to this request to the extent it seeks information regarding the "CrunchPad," as Fusion Garage understands that no such device exists. Any documents that Fusion Garage agrees to produce in response to this request shall not be deemed an admission as to the existence of the CrunchPad or that the JooJoo is related to, or a successor to, the alleged CrunchPad. Fusion Garage further objects that Plaintiffs are trying to use this request to elicit a response or objection that a Fusion Garage product is, or is related to, the CrunchPad. Fusion Garage further objects to this request to the extent that it seeks information that is in the custody or control of Plaintiffs and/or equally available from Plaintiffs, as Plaintiffs assert that the CrunchPad is their device. Subject to the foregoing general and specific objections, Fusion Garage has complied with the Court's Order of April 9, 2010 (Dkt. 61) to produce documents responsive to this request, to the extent that such documents do not disclose Fusion Garage's highly proprietary information. REQUEST FOR PRODUCTION NO. 45: All design documents, bill of materials, and other technical materials concerning the CrunchPad. SUPPLEMENTAL RESPONSE TO REQUEST FOR PRODUCTION NO. 45: Fusion Garage incorporates each of its General Objections as expressly set forth therein. Fusion Garage objects to the defined term "CrunchPad" as vague and ambiguous as it purports to encompass Fusion Garage's products, including the JooJoo. Fusion Garage further objects to this request to the extent it seeks information regarding the "CrunchPad," as Fusion Garage understands that no such device exists. Any documents that Fusion Garage agrees to produce in response to this request shall not be deemed an admission as to the existence of the CrunchPad or that the JooJoo is related to, or a successor to, the alleged CrunchPad. Fusion Garage further objects that Plaintiffs are trying to use this request to elicit a response or objection that a Fusion Garage product is, or is related to, the CrunchPad. Fusion Garage further objects to this request on the ground that it assumes facts not in evidence; namely, the existence of the "CrunchPad" device. It is Fusion Garage's understanding that there is no such device. Fusion Garage further objects that this request seeks highly proprietary information and/or source code, but Plaintiffs have not submitted an adequate Statement of Misappropriated Business Ideas in accordance with the Court's Order of April 9, 2010. (See Dkt. 62). Fusion Garage further objects to this request to the extent that it seeks information that is in the custody or control of Plaintiffs and/or equally available from Plaintiffs, as Plaintiffs assert that the CrunchPad is their device. Fusion Garage further objects to this request on the ground that it is vague and ambiguous. REQUEST FOR PRODUCTION NO. 46: All design documents, bill of materials, and other technical materials concerning the JooJoo. SUPPLEMENTAL RESPONSE TO REQUEST FOR PRODUCTION NO. 46: Fusion Garage incorporates each of its General Objections as expressly set forth therein. Fusion Garage objects that this request seeks highly proprietary information and/or source code, but Plaintiffs have not submitted an adequate Statement of Misappropriated Business Ideas in accordance with the Court's Order of April 9, 2010. (See Dkt. 62). Fusion Garage further objects to this request on the ground that it seeks confidential, proprietary, and/or business-sensitive material of Fusion Garage and no protective order is in place in this action. Fusion Garage further objects to this request on the ground that it is unduly burdensome, harassing, and overbroad with respect to scope. Fusion Garage further objects to this request on the ground that it is vague and ambiguous. REQUEST FOR PRODUCTION NO. 49: All documents concerning government approvals or certifications concerning the JooJoo or the CrunchPad, including but not limited to Federal Communications Commission approval. A-7
Mot. to Compel Production of Withheld Information and Documents -- Case No. CV-09-5812 RS (PVT)

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Winston & Strawn LLP

1 2 3 4 5 6 7 8 9 10
101 California Street San Francisco, CA 94111-5802

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Winston & Strawn LLP

SUPPLEMENTAL RESPONSE TO REQUEST FOR PRODUCTION NO. 49: Fusion Garage incorporates each of its General Objections as expressly set forth therein. Fusion Garage objects that this request seeks highly proprietary information and/or source code, but Plaintiffs have not submitted an adequate Statement of Misappropriated Business Ideas in accordance with the Court's Order of April 9, 2010. (See Dkt. 62). Fusion Garage further objects to the defined term "CrunchPad" as vague and ambiguous as it purports to encompass Fusion Garage's products, including the JooJoo. Fusion Garage further objects to this request to the extent it seeks information regarding the "CrunchPad," as Fusion Garage understands that no such device exists. Any documents that Fusion Garage agrees to produce in response to this request shall not be deemed an admission as to the existence of the CrunchPad or that the JooJoo is related to, or a successor to, the alleged CrunchPad. Fusion Garage further objects that Plaintiffs are trying to use this request to elicit a response or objection that a Fusion Garage product is, or is related to, the CrunchPad. Fusion Garage further objects to this request on the ground that it assumes facts not in evidence; namely, the existence of the "CrunchPad" device. It is Fusion Garage's understanding that there is no such device. Fusion Garage further objects to this request on the ground that it seeks information protected by the attorney-client privilege, the work-product doctrine, and other applicable privileges. Fusion Garage further objects to this request to the extent that it seeks information that is in the custody or control of Plaintiffs and/or equally available from Plaintiffs. Subject to the foregoing general and specific objections, Fusion Garage has complied with the Court's Order of April 9, 2010 (Dkt. 61) to produce documents responsive to this request, to the extent that such documents do not disclose Fusion Garage's highly proprietary information. REQUEST FOR PRODUCTION NO. 53: Every document created or received before November 17, 2009 that contains the term "JooJoo." RESPONSE TO REQUEST FOR PRODUCTION NO. 53: Fusion Garage incorporates each of its General Objections as expressly set forth therein. Fusion Garage further objects to this request on the grounds that it is overly broad and unduly burdensome. Fusion Garage further objects to this request to the extent that it calls for the disclosure of information subject to the attorney-client privilege, the work-product doctrine, or any other applicable privileges. Fusion Garage further objects to this request on the grounds that it seeks information which is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. Fusion Garage further objects to this request to the extent that it seeks Fusion Garage's highly proprietary information and/or source code, which is not discoverable before TechCrunch submits a Statement that adequately identifies and delineates its allegedly misappropriated business ideas. (See Dkt. 62). Subject to the foregoing general and specific objections, after reasonable investigation, Fusion Garage has produced all non-privileged documents within its possession, custody, or control that contain the term "JooJoo" and were created or received before November 17, 2009, to the extent that such documents do not disclose Fusion Garage's highly proprietary information and/or source code. REQUEST FOR PRODUCTION NO. 54: Every communication with Gigabyte before November 17, 2009. RESPONSE TO REQUEST FOR PRODUCTION NO. 54: Fusion Garage incorporates each of its General Objections as expressly set forth therein. Fusion Garage further objects to this request on the ground that it is overly broad and unduly burdensome. Fusion Garage further objects to this request on the ground that it seeks evidence which is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. Fusion Garage further objects to this request to the extent that it seeks Fusion Garage's highly proprietary information and/or source code, which is not discoverable before TechCrunch submits a Statement that adequately identifies and delineates its allegedly misappropriated business ideas. (See Dkt. 62). Subject to the foregoing general and specific objections, after reasonable investigation, Fusion Garage has produced all communications with Gigabyte the occurred before A-8
Mot. to Compel Production of Withheld Information and Documents -- Case No. CV-09-5812 RS (PVT)

1 2 3 4 5 6 7 8 9 10
101 California Street San Francisco, CA 94111-5802

November 17, 2009 and do not disclose Fusion Garage's highly proprietary information and/or source code, to the extent any such documents exist. REQUEST FOR PRODUCTION NO. 55: Every communication with Gigabyte regarding Plaintiffs or the CrunchPad, JooJoo, or other web tablet on which either party worked. RESPONSE TO REQUEST FOR PRODUCTION NO. 55: Fusion Garage incorporates each of its General Objections as expressly set forth therein. Fusion Garage further objects to this request on the ground that it is overly broad and unduly burdensome. Fusion Garage further objects to this request on the ground that it seeks evidence which is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. Fusion Garage further objects to this request to the extent that it seeks Fusion Garage's highly proprietary information and/or source code, which is not discoverable before TechCrunch submits a Statement that adequately identifies and delineates its allegedly misappropriated business ideas. (See Dkt. 62). Fusion Garage further objects to this request on the grounds that it seeks information regarding the "CrunchPad," as Fusion Garage understands that no such device exists. Fusion Garage further objects that TechCrunch is trying to use these requests to elicit a response or objection that a Fusion Garage product is, or is related to, the CrunchPad. Subject to the foregoing general and specific objections, Fusion Garage will produce all communications with Gigabyte regarding Plaintiffs, the CrunchPad, or the JooJoo, to the extent such documents have not already been produced in this litigation and to the extent such documents do not disclose Fusion Garage's highly proprietary information and/or source code. REQUEST FOR PRODUCTION NO. 56: Every communication with CSL before November 17, 2009. RESPONSE TO REQUEST FOR PRODUCTION NO. 56: Fusion Garage incorporates each of its General Objections as expressly set forth therein. Fusion Garage further objects to this request on the ground that it is overly broad and unduly burdensome. Fusion Garage further objects to this request on the ground that it seeks evidence which is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. Fusion Garage further objects to this request to the extent that it seeks Fusion Garage's highly proprietary information and/or source code, which is not discoverable before TechCrunch submits a Statement that adequately identifies and delineates its allegedly misappropriated business ideas. (See Dkt. 62). Fusion Garage further objects to this request on the grounds that it is vague and ambiguous because "CSL" has not been defined. Subject to the foregoing general and specific objections, Fusion Garage has produced all documents reflecting communications with CSL that occurred before November 17, 2009, to the extent such documents exist and to the extent that such documents do not disclose Fusion Garage's highly proprietary information and/or source code. REQUEST FOR PRODUCTION NO. 57: Every communication with CSL regarding Plaintiffs or the CrunchPad, JooJoo, or other web tablet on which either party worked. RESPONSE TO REQUEST FOR PRODUCTION NO. 57: Fusion Garage incorporates each of its General Objections as expressly set forth therein. Fusion Garage further objects to this request on the ground that it is overly broad and unduly burdensome. Fusion Garage further objects to this request on the ground that it seeks evidence which is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. Fusion Garage further objects to this request to the extent that it seeks Fusion Garage's highly proprietary information and/or source code, which is not discoverable before TechCrunch submits a Statement that adequately identifies and delineates its allegedly misappropriated business ideas. (See Dkt. 62). Fusion Garage objects to this request on the grounds that it seeks information regarding the "CrunchPad," as Fusion Garage understands that no such device exists. Fusion Garage further objects that TechCrunch is trying to use these requests to elicit a response or objection that a Fusion Garage product is, or is related to, the CrunchPad. A-9
Mot. to Compel Production of Withheld Information and Documents -- Case No. CV-09-5812 RS (PVT)

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Winston & Strawn LLP

1 2 3 4 5 6 7 8 9 10
101 California Street San Francisco, CA 94111-5802

Subject to the foregoing general and specific objections, Fusion Garage will produce all communications with CSL regarding Plaintiffs, the CrunchPad, or the JooJoo, to the extent such documents have not already been produced in this litigation and to the extent such documents do not disclose Fusion Garage's highly proprietary information and/or source code. REQUEST FOR PRODUCTION NO. 59: All communications with "M Payments," as referenced by Mr. Rathakrishnan on page 159 of his deposition transcript, or those that offer the "M Payments" service, regarding Plaintiffs or the CrunchPad, JooJoo, or other web tablet on which either party worked. RESPONSE TO REQUEST FOR PRODUCTION NO. 59: Fusion Garage incorporates each of its General Objections as expressly set forth therein. Fusion Garage further objects to this request on the ground that it seeks evidence which is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. Fusion Garage objects to this request on the grounds that it seeks information regarding the "CrunchPad," as Fusion Garage understands that no such device exists. Fusion Garage further objects that TechCrunch is trying to use these requests to elicit a response or objection that a Fusion Garage product is, or is related to, the CrunchPad. Subject to the foregoing general and specific objections, Fusion Garage will produce any relevant, non-privileged documents within its possession, custody, or control that constitute communications with M Payments (or those that offer the M Payments service) regarding Plaintiffs, the CrunchPad, or the JooJoo, to the extent such documents have not already been produced in this litigation and to the extent that such documents do not disclose Fusion Garage's highly proprietary information and/or source code. REQUEST FOR PRODUCTION NO. 60: All documents evidencing your use of the term "Project Fuse" in connection with a tablet computer. RESPONSE TO REQUEST FOR PRODUCTION NO. 60: Fusion Garage incorporates each of its General Objections as expressly set forth therein. Fusion Garage further objects to this request on the ground that it seeks evidence which is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. Fusion Garage further objects to this request on the grounds that it is overly broad and unduly burdensome. Fusion Garage further objects to this request to the extent that it calls for the disclosure of information subject to the attorney-client privilege, the work-product doctrine, or any other applic