Leader Technologies Inc. v. Facebook Inc.

Filing 72

Official Transcript of Motion Hearing held on 05-28-09 before Judge Joseph J. Farnan, Jr. Court Reporter/Transcriber Deanna Warner. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 8/12/2009. Redacted Transcript Deadline set for 8/24/2009. Release of Transcript Restriction set for 10/20/2009. (lad)

L e a d e r Technologies Inc. v. Facebook Inc.

Doc. 7

1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 WHITE & CASE B Y: HEIDI L. KEEFE , ESQ. Counsel for Defendant Hawkins R e p o r t i n g S e r v i c e 715 North King Street - Wilmington, Delaware 19801 [phone] FAX [phone]
Dockets.Justia.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE _ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ __ LEADER TECHNOLOGIES, ) INC. , a Delaware ) corporation, ) ) PLAINTIFF, ) ) v. ) C .A. No . 0 8-862 JJF ) FACEBOOK, INC ., a ) Delaware corporation, ) ) DEFENDANT. ) _ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ Thursday, May 2 8, 2009 10: 35 a.m . Courtroom 4B 844 King Street Wilmington, Delaware BEFORE: THE HONORABLE JOSEPH J . FARNAN, JR . United States District Court Judge

APPEARANCES: POTTER ANDERSON & CORROON, LLP B Y: PHILIP ROVNER, ESQ. KING & SPALDING LLP B Y: PAUL ANDRE, ESQ. Counsel for Plaintiff BLANK & ROME, LLP B Y: STEVEN L . CAPONI, ESQ.

2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 font? that? MS . KEEFE: Which one, Your Honor? Honor. Honor. THE COURT: from detention coming i n. Now we have the group You all are in the

enviable position of having a dispute that seems to be continuing. that won 't listen . I t's like the kid i n class We can take care o f this .

Want to announce your appearance s? MR . ROVNER: Good morning, Your And

Phil Rovner from Potter Anderson.

with me from King and Spauling i s Paul Andre . THE COURT: MR . CAPONI: Good morning. Good morning, Your

Steve Caponi from Blank Rome, and with

me today is Heidi Keefe from White and Case for Facebook. Your Honor, Ms . Keefe has a little laryngitis kicking i n. THE COURT: Well, first of all, I

have to tell you -- well, in the brief in opposition. brief. What size font is that footnote I didn' t think they made that. What is This is in this case. Ms . Keefe's

Hawkins R e p o r t i n g S e r v i c e 715 North King Street - Wilmington, Delaware 19801 [phone] FAX [phone]

3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 know. misspoke . the body. THE COURT: Twelve. Okay. That 's good t o So I was easy. MR . ROVNER: Your Honor, I think I this print. THE COURT: All of them. You have

I had to go to my ophthalmologist.

They thought i t was me. MS . KEEFE: apologize, Your Honor. THE COURT: have fun up here. Don't apologize. I I think it' s ten. I

Trust m e.

This is all good.

What size i s yours, Mr. Andre ? MR . ROVNER: eleven, Your Honor. THE COURT: difference is? Is that all the I believe our s i s

That 's shocking.

Well, we 're going to have an order that says nothing less than eleven. MS . KEEFE: No problem. That 's

Our s i s twelve, which is the same as

Making a note of that.

thinking I was getting a lot older all of a sudden. Seriously, we kind o f knew this Hawkins R e p o r t i n g S e r v i c e 715 North King Street - Wilmington, Delaware 19801 [phone] FAX [phone]

4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 happen. was going t o happen. This is -- you know , I got

the note from the sixth grade teacher as you came into the seventh. She said , " This i s what 's going to You have to be on top o f i t i n

September." Let m e ask both o f you, and w e'l l start with the plaintiff. Give me a description

of what a person of ordinary skill in this art would look like. And I know. Believe me , I 'm I'm just interested

not committing you to this. today in understanding that. MR . ANDRE:

Your Honor, I think it

would be someone with a computer science degree , maybe even an advanc ed degree like a master' s o r doctorate, or someone who has a lot of computer experience, industry experience. Someone who

has spent a significant amount of time working on the computer over the last ten, twenty years . That would by my understanding o f someone skilled i n the art as a layperson reading or using Facebook. I think a layperson

without those skills can understand these claims. You characterize it as two guys in a

Hawkins R e p o r t i n g S e r v i c e 715 North King Street - Wilmington, Delaware 19801 [phone] FAX [phone]

5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 dorm room. I don 't think it is overcomplex technology, but for one skill ed in the art, I think a definition for validity purposes, it would be that character ization I just gave. THE COURT: case, this case a t hand : And with regard to the Pre -filing. And I

don't want you to disclose anything prematurely . This is just a yes o r n o. Did you have a

consultation with potential e xperts ? MR . ANDRE: THE COURT: Yes. Would they have been

academics o r more toward the industry side? MR . ANDRE: It was both , Your

Honor , but primarily academics. THE COURT: Okay.

And with regard to the claims, your papers tell me that - - and I always want t o be a careful reader -- you say i n response t o their effort a t discovery from you, with interrogatory number one, that you' ve given them your preliminary infringement analysis. MR . ANDRE: THE COURT: Yes, that's correct. Tell me why you use

Hawkins R e p o r t i n g S e r v i c e 715 North King Street - Wilmington, Delaware 19801 [phone] FAX [phone]

6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 the word "preliminary." MR . ANDRE: Your Honor, what we So we

know is what's available i n the public .

can look at the manifestation of the source code, which is the web site. So what we will d o once we get their technical information is take the back end stuff and supplement our infringement contentions. "preliminary." We know their web site functions just as the claims dictate . looking at it. We can tell that b y That's why w e use the word

What we don't know are what

components or modules are responsible for those functions. We don't know what components or modules, for example , d o the tracking or things of that nature . So these are pr eliminary

in fringe ment contentions based o n the public information. There are only two sources of public information available to us: site itself and A PI. That 's it. Their web

So we used

those two sources to provide preliminary Hawkins R e p o r t i n g S e r v i c e 715 North King Street - Wilmington, Delaware 19801 [phone] FAX [phone]

7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 in fringement contentions. We 're probably borrowing a little bit from the districts that have requirements that you get preliminary infringement contentions early in the case and then your final later , once you get discovery . THE COURT: And the source code,

that is what will be , kind of , like , the step off technical information? MR . ANDRE: The source code and

the technical documents in support of the source code. The way the source code is written is , usually you have a design note. write the code based on that note. And they Those two

sources of technical documents will give us all we need to finalize our in fringement contentions. This is unique to all software cases , unless the code is open source of some type or available to the public. I think, Your Honor, one o f the points here is that the parties know the source code is going to be produced in the case. W e'v e

Hawkins R e p o r t i n g S e r v i c e 715 North King Street - Wilmington, Delaware 19801 [phone] FAX [phone]

8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 questions. negotiated it in the protective order. THE COURT: It 's all a question of

timing, and what I hear all the time, particularly i n these cases, is, "a s the discovery evolves ." And I am never in tune with But that' s okay .

that evolution, apparently.

Let m e ask Ms. Keefe some Thank you. If you could just start out helping me with your idea of who might be a person, by characteristics , skilled in the art. MS . KEEFE: At a very broad level, Someone with

Your Honor, I think I agree.

computer science experience, whether that be from industry experience or from a degree. I think what w e find in Silicone Valley most times is that degree s are not the arbiter of a person of skill since so many computer scien tists/ software engineers come straight out o f high school and start working. So it really i s someone with some experience in the field. THE COURT: Okay. Now, I guess

the way I read your pap er was that you felt that Hawkins R e p o r t i n g S e r v i c e 715 North King Street - Wilmington, Delaware 19801 [phone] FAX [phone]

9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 you should get a -- I'l l say in the first in stance -- the full contention of plaintiff with regard to why they think they can accuse you o f infringement, and that what has been produced in a -- quote, un quote -- preliminary context doesn' t help you because it doesn 't de fine the infringement issue . MS . KEEFE: That' s exactly what

our point i s, Your Honor, especially with respect to the fact that they haven 't linked any of their infringement contentions with any o f the claim limitations o r elements. THE COURT: You say you want a

limitation- by- limitation analysis. MS . KEEFE: Correct, that' s what

our interrogatory asked for. What the case law tells us is that we know that there may be some aspects that are back end that the code would be helpful t o them for. Before w e get to that point, they still

have to tell u s everything that they know from the publicly available information. haven 't done that . In fact, we had a broad narrative Hawkins R e p o r t i n g S e r v i c e 715 North King Street - Wilmington, Delaware 19801 [phone] FAX [phone] They

10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 there? Honor -THE COURT: What' s the feeling that wasn't linked t o any limitations that didn' t link itself t o any of the products on Facebook 's web site and therefore didn 't tell us , even , what code we needed to go and gather. And instead , they 've asked for all of the codes for all of the Facebook web site without telling u s how that's linke d i n any way to the claims. So what we' re asking for now, Your

That they 're going to find some

additional infringement ? MS . KEEFE: repeat that , please? THE COURT: What' s the fear? I' m sorry. Could you

Say I order you to produce the entire source code. produce it. It 's electronic. You

You have provisions in the What 's the fear about that

protective order.

production, particularly the protective order? MS . KEEFE: I think for any

software company, the first fear is simply wanting to make sure that the amount o f code Hawkins R e p o r t i n g S e r v i c e 715 North King Street - Wilmington, Delaware 19801 [phone] FAX [phone]

11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 that get s out is limited t o what 's involved in the case. No matter how good the protective There

order is , there's always human nature. are always mistakes.

There are always things

that happen , and you can't unring that bell. And that 's not accusing anyone o f doing anything. It' s just protecting the

possibilities of potential problems . Secondar ily , Facebook's website is terabytes worth o f data . Your Honor had a case

recently with a similar thing where the entire source code was produced. And immediately,

plaintiffs came back and said , " This i s too big . I need you to tell m e the lines in here that do X and Y. " And Your Honor rightfully said, "You asked for all. You get it. " What w e'r e

hoping t o fore stall are any o f those types o f problems. We understand that our code i s going to be disclose d i n this case. If they can

show us that there are portions of our website that legitimately track to their claim limitations , w e will provide that narrow scope Hawkins R e p o r t i n g S e r v i c e 715 North King Street - Wilmington, Delaware 19801 [phone] FAX [phone]

12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Honor. For example , one of the things that' s very striking about what they haven't given us yet i n the response itself -The response itself is a broad Hawkins R e p o r t i n g S e r v i c e 715 North King Street - Wilmington, Delaware 19801 [phone] FAX [phone] hurdle. analysis. I think the most striking thing, if you read their interrogatory response, the one that is -THE COURT: If I read their claims code. of source code . We never refused to produce source W e simply said, "Tell us what i t i s that Not the whole site.

we 're supposed to produce.

We need to protect our assets , but the things that are relevant to this case." And they have yet to come to that They still haven' t given u s that

and I was a person of skill by whatever definition we use , you' re telling m e that I could , from reading their claims , I could be able to tell what portions of the source code I want to see ? MS . KEEFE: I think so, Your

13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 of bits? narrative. Someone goes to Facebook and does

something, but it doesn 't link i t t o any web pages or an y actual limitations. In their letter and their opposition papers , w e'r e starting t o suddenly see an actual linkage to real things that are happening. We see for the first time a mention It' s the

of when a gift is given on Facebook . gift, and how the gift is tracked.

If the interrogatory response was that specific for the publicly-facing material, we would be able to give them the back code that allow ed those publicly- facing thing s t o happen. So they would be asking for the very things that they need b y virtue of telling u s what the front -end facing components are. In the claim, if you would re view the declaration o f M r. Gray - THE COURT: Do you have category Does Facebook

Not you personally.

have cat egorie s o f bits in the source code? MS . KEEFE: I' m not 100 percent If you

certain that I understand what you mean.

mean are there pods or modules that relate t o Hawkins R e p o r t i n g S e r v i c e 715 North King Street - Wilmington, Delaware 19801 [phone] FAX [phone]

14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 there? MS . KEEFE: My client will be certain applications on the web site, then the answer i s yes. What you can d o, for example, with an application like gifts, there is a string of codes that affects gifts. There are also

multi ple other strings of codes and other modules that have nothing to do with gift s that affect other portions o f the web site and how they work. So , yes, you can compartmentalize. THE COURT: How many modules are

angry that I don' t know the number, but i t i s a very large number. And I know this from a

previous case that I worked on with them where we had t o parse through to find the module that we neede d. And w e went to them, got the module

that we needed with the attendant arms and limbs that it touched i nto , and we were able do produce that t o the other side. THE COURT: Mr . Andre, if you saw

the list of modules, do you think that would help you relate i t t o your claims? Hawkins R e p o r t i n g S e r v i c e 715 North King Street - Wilmington, Delaware 19801 [phone] FAX [phone]

15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Honor. If they had some kind o f a map o f their source code or the list of modules or anything like, I' m sure that would be very helpful to us, and w e could probably limit i t from there. We offered that t o them , saying if they tell u s how categorize their source code, how they -- everyone maps their codes so they can find it easily. Someone skilled i n the art MR . ANDRE: Most likely, Your

can easily pinpoint places in the codes. So if we had that , yes. would be very helpful. That

We could probably , a s

long as they did somewhat of an accurate job of labeling the modules , w e would b e able to do that. Your Honor, one o f the things we 're concerned about, and Counsel raises it several times a day, is if we give them a n example of infringement like the gifts , w e don' t want just the application for the gift . Our infringing contention is the fundamental architecture o f their website . It' s

Hawkins R e p o r t i n g S e r v i c e 715 North King Street - Wilmington, Delaware 19801 [phone] FAX [phone]

16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 a context component and tracking component and other limitations in the claims. Our concern is we can't give them every single example of infringement. There

would be hundreds of them because there's hundreds of applications that run o n this architecture. If we get the list o f their modules, we could probably look at that and determine what part of the architecture would b e needed for us to look a t. With the protective order, there 's no worry at all about source code. copies o f i t. There 's no

We 're not going t o b e able to It 's held i n a secure We examine it. They

print copies o f i t.

location at their office.

have someone there watching u s a s w e examine it . It 's very safe . I don' t think there i s any

threat a t all that the source code is going to get out to the public somehow . THE COURT: One o f the things -- I

know you understand this, and that' s a rational argument. But if you and I owned i t - MR . ANDRE: Trust me , Your Honor ,

Hawkins R e p o r t i n g S e r v i c e 715 North King Street - Wilmington, Delaware 19801 [phone] FAX [phone]

17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 I' m o n both sides of the table involving software . I understand how proprietary

engineers get about this. THE COURT: You would be very

concerned about anybody looking at it. MS . KEEFE: Your Honor, I think

one o f the things that we' re missing here is the limitation- by- limitation analysis that we still don't have. Mr . Andre keeps talking about not wanting to be limited t o a n application. He

hasn' t even given one limitation -by -limitation example of how the website infringes, telling u s which portion of our code would be affect ed. Instead, we keep hearing " the platform ." The case law tells us it is the plaintiff's burden t o prove i nfringement at the stage of showing an infringement contention, showing how they believe someone infringes. They do have t o g o limitation by limitation. If they are contending, for example, that the tracking software on the back end o r the storage aspect on the back end , which are the two elements they' ve listed as back end , Hawkins R e p o r t i n g S e r v i c e 715 North King Street - Wilmington, Delaware 19801 [phone] FAX [phone]

18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 we would be content to have them not say that, and say this i s i n things that w e don' t have . But they still have to tell u s where the rest of the user -facing things are when they use the web site . That will help us That 's

determine which software t o give them. what the case law says. The case law says that the

Catch -22 we 're talking about -- and the parties actually agree. It' s a unique situation that

the parties agree on the case law that 's applied. I t's just that w e disagree o n whether

or not they 've given sufficient notice . THE COURT: I have t o ask you a

question because when I read these papers, why would anybody think the case law is more important than the rules? I understand the case law guides the decisions, but every patent case i s different. And, well, that's why w e don' t have If you tried to apply them

pa tent rules here .

across the board to every type o f patent case you get in, it doesn 't work, is the result. When you read the rules , what Hawkins R e p o r t i n g S e r v i c e 715 North King Street - Wilmington, Delaware 19801 [phone] FAX [phone]

19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 of you. happens is some judicial officer decides to write about their view of how the rule s should be applied. Let me ask this question of both Do you think most of these discovery

decisions are informed or arbitrary ? MR . ANDRE: courts, Your Honor? THE COURT: You can say here I wonder what In this court or other

because I think i t's arbitrary. lawyers and clients think.

I understand a t other courts, because judges talk at these conferences, I think it 's arbitrary . arbitrary? MS . KEEFE: Sometimes I feel like Don 't you think it 's

it 's arbitrary , but sometimes I think there really are underlying things that can inform decisions. For example , i n this case, the facts can inform what feels right and what seems fair based on what the plaintiff is supposed to do in a case and what the defendant is supposed to do . Hawkins R e p o r t i n g S e r v i c e 715 North King Street - Wilmington, Delaware 19801 [phone] FAX [phone]

20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 nuts. THE COURT: I get that. I THE COURT: What I think the most

interesting thing about this case i s, from that kind of point, is that -- and I think somebody mentioned i n the papers -- what was out there b y the Facebook folks before the inventors o f these claims. I' m not asking for a n answer, but that' s the kind o f thing that 's nuanced into this, that, to me , i f I were a businessperson o r on your side o f the bench, it would drive me nuts. MS . KEEFE: It 's driving Facebook

understand what you' re telling m e. the case law particularly helpful.

I don 't find

I just gave a talk on eBay.

eBay

didn' t d o anything but say what was being done anyway, except they wanted to tell us what exceptions they liked a s opposed to what the Federal Circuit likes. It 's the craziest thing , but they have the equitable principles , which the trial judge applied. They have general principles

Hawkins R e p o r t i n g S e r v i c e 715 North King Street - Wilmington, Delaware 19801 [phone] FAX [phone]

21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 from Roberts, and then Kennedy tells you, "Watch out for trolls ." It 's same thing the Federal Circuit said, just different words. I don't

think that was any help at all for the trial courts, what they told us. I am concerned , both because I think these claims are readable -- the limitations are readable, even t o m e - - but I'm also concerned about the property o f Facebook. I' ll give you one more story. I

was o n the beach in Saint Thomas in January with my family, and some guy starts talking to me . And he winds up being the head of the computer department at the University of Chicago where they' re building the world largest computer now . And h e's in charge o f that project, and h e told me , when he heard I was from Delaware and heard I was judge , h e said , "I t's just terrible what's going on because inventors can' t get tribute, and people who have property are getting abused." He thought the whole thing was crazy and didn 't understand why we didn't have Hawkins R e p o r t i n g S e r v i c e 715 North King Street - Wilmington, Delaware 19801 [phone] FAX [phone]

22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 people o f technology come in and help us regularly get rid of these disputes . is alerted to this. It 's a problem . Everybody

What I think w e need to do to try and make this a little bit informed and t o let it evolve a little bit, I think I would like Facebook to produce that category list . Then

I' d like to see how reasonable M r. Andre is in polling that list. Does that make sense? It does, Your Honor.

MS . KEEFE:

The only thing -- I' ll go back t o a rule instead of going to case law . THE COURT: You can do both. I' m

just being frank with you. MS . KEEFE: I absolutely

understand, and I agree with a lot of what Your Honor said. The rule , though, says that the plaintiff i s supposed t o have the burden of showing what's infringing. THE COURT: I know, but see,

you'v e got a dumb judge who thinks I'v e bought into that preliminary showing. MS . KEEFE: We still don't know.

Hawkins R e p o r t i n g S e r v i c e 715 North King Street - Wilmington, Delaware 19801 [phone] FAX [phone]

23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 we go next. MS . KEEFE: THE COURT: Okay. Mr . Andre? We even have a declarant with thirty years experience. THE COURT: I had to start

somewhere with my arbitrariness. I said, "Okay. They 've given

enough a t this stage of the case , but that's not enough t o let them g o full bore into Facebook." MS . KEEFE: THE COURT: We understand. I' m trying.

But I think you have to come up with something , and I'v e kind of heard about these modules or bytes or all different things. I thought maybe if we got that list and then I g o back and see how reasonable Mr . Andre wanted to be, and you can discuss this between yourselves. And then I' d have you back

if you couldn' t agree. MS . KEEFE: probably good. THE COURT: And then we see where I think that's

I' m trying to get you t o stop Hawkins R e p o r t i n g S e r v i c e 715 North King Street - Wilmington, Delaware 19801 [phone] FAX [phone]

24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Honor. MR . ANDRE: Thank you. talking. I 'm getting nervous . MS . KEEFE: It 's hard t o d o, Your

Your Honor, that would be fine. One o f the things I do tend t o agree with Your Honor that these -- my general impression is that discovery disputes are the biggest waste of courts' resources and clients ' moneys in the civil litigation process. I think a lot of I do tend t o agree

these rulings are arbitrary. with you . world.

We' re not trying t o ask for the

We just want -THE COURT: I didn't think you

were, but I can understand where they think that you are. MR . ANDRE: Absolutely. It is

something that if we have a map or list o f modules, we can pare that down and select ively target those modules. We can have our e xpert look a t them, and i f h e says , " Well, this i s having a call from another module," we 'd like t o b e able to back and say, "We need that module as well." Hawkins R e p o r t i n g S e r v i c e 715 North King Street - Wilmington, Delaware 19801 [phone] FAX [phone]

25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Because if it' s calling information from another module, we need that , obviously. THE COURT: Just so you know I'm

not totally off the wall, the reason I asked those questions at the beginning, the next round of this evolution , I may ask each o f you to bring in an expert t o tell me why you want more than they'r e willing to give and let their expert tell me why you don 't need i t. So we

have some information beyond legal argument. Does that make sense? MR . ANDRE: It does, Your Honor.

If we get that and i f w e get the technical document s i n support of those modules as well, once we identify them, that will take us almost all the way to all the technical documents w e need anyway. THE COURT: Then you have to

become very firm in your infringement analysis, limitation by limitation. MR . ANDRE: We think we 've already

done limitation b y limitation on a broad scale based on public information. We 've done

everything we can do based on public Hawkins R e p o r t i n g S e r v i c e 715 North King Street - Wilmington, Delaware 19801 [phone] FAX [phone]

26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 information. We' ll be glad t o supplement

interrogatories and give them those limitation by limitation. No problem.

I think the bigger issue w e'r e going to have, obviously, is the fact that w e'r e going to have those discovery fights. from the very first time w e were in the courtroom. Just to give you an example, kind of , like , Facebook, which is a magnitude larger than my small client , has produced about 2,800 documents. We 've produced two-and- a-half times This constant pull to try t o You heard

that much already.

get information i s getting to be -It 's kind o f what you said in the earlier case today. They can make us spend a

tremendous amount of money to try t o pull out every single document. One o f the things we were hoping for o n this motion, for example, we filed a motion because they said they wouldn't give us document s. us . did. In their opposition, they give i t t o

They said they weren' t going t o, then they So maybe it 's moot now. Some of these

Hawkins R e p o r t i n g S e r v i c e 715 North King Street - Wilmington, Delaware 19801 [phone] FAX [phone]

27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 trashed. THE COURT: MS . KEEFE: Don't be so defensive. I love my company. modules. categories are moot. But the technical documents, we don't want to have t o come back here twenty times because every single time we ask for something, they put up a wall . That's our

biggest concern, and that' s what I' m most anxious about, I guess. We will be very precise on the W e won' t g o over broad on this a t all. MS . KEEFE: We 've never , ever said W e'v e

we 're not going t o give the documents. given over 100 ,000 pages.

If there is specificity to the request for our documentation , i t will be forthcoming. There is no I'm pulling it, and

you can' t have it . We 've maintained our position absolutely consistently. worried about -I don 't want Facebook t o b e The one thing I 'm

The only other thing I am hearing Hawkins R e p o r t i n g S e r v i c e 715 North King Street - Wilmington, Delaware 19801 [phone] FAX [phone]

28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 just a little bit , Your Honor , and I know this is just going to be, whenever it comes out i s where it comes out. Mr . Andre seems t o b e saying, "Once I identify that module, I want every single thing about i t, and then I'l l keep coming back for more and more and more before I stop looking. " One o f the biggest points of us bringing this motion was in order to start moving forward in order for u s t o b e able to do a proper in validity analysis to start looking a t claim construction. We need to know what 's

accused, and w e d o not still believe that we understand what's accused. So I would just ask that there b e a little more give and take, that this just not be , I give a module list, he picks two , then he says he needs four, then six, then eight, and we 're still left with n o supplementation. Instead, maybe after each time, they have to supplement with additional information they learne d each time so that w e can keep moving this forward. He seems to be

Hawkins R e p o r t i n g S e r v i c e 715 North King Street - Wilmington, Delaware 19801 [phone] FAX [phone]

29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 like this. will. There 's a big push i n the courts Hawkins R e p o r t i n g S e r v i c e 715 North King Street - Wilmington, Delaware 19801 [phone] FAX [phone] this case? afraid o f the fact that each supplementation is a limitation. I know that the rules state that

you can supplement interrogatories with newly found information, so -THE COURT: The rules also say I

can enter a n order saying no more supplementation. That' s why I like the rules. Rules are good. In American courts, we

MS . KEEFE: THE COURT: don't follow them .

You 'll get briefs in

discovery disputes, and it 's all cases , and nobody analyzes the rule. Maybe not. Call me crazy. I can order no more supplementation. I can put that down. Isn't that crazy?

You know what I'm going to do in This case got started early, but I I 'm

think it 's an interesting enough case. going to put you in my little study . MS . KEEFE: THE COURT: Oh , n o. Yes.

You'r e going t o Maybe you

You'r e not going to.

30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 the rules? for a whole lot o f things in patent cases , some of which is completely ill -advised, I think. And t o some ex tent, they'r e going t o kill the goose , which i s not a good thing for you all , i n my view. So -- and there's a lot of this inter national push, that w e d o things like they do it other place s and why we have juries and all sorts o f stuff out there. I' m going put you in the study which is going to , kind of , address what you just raised and also what you raised, Mr. Andre . There 's a little questionnaire I have, and, for instance , I 'll send you a letter and then you can respond t o i t. In camera, I'm going to ask you to submit - - which means i t doesn't go on the docket, it' s not available in the clerk's office, it' s only a chambers review document -and I tag i t t o Rule 1 and Rule 16. "i nexpensive." Can you imagine that word is in It really i s. There 's actually a The word

study commencing by an appellate judge , a guy Hawkins R e p o r t i n g S e r v i c e 715 North King Street - Wilmington, Delaware 19801 [phone] FAX [phone]

31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 who was an appellate lawyer who' s been a district judge for five years or six years. He 's doing a study o n patent cases in complex litigation because i n all his experience, he figured out how d o this . statistics to support i t. He 's polling lawyers and trial judges, and this is another ill- advised effort by our federal judicial center, in my view, to destroy the practice for lawyers . make it more i nefficient. I want you to send m e a letter and tell me what your client spent pre- Rule 1 6 conference to get to the Rule 16 conference, both in fee s and costs. Then I want you t o tell me in the letter what the budget -- you don't have to share this with each other. It just comes t o m e I think to Now he just needs some

-- what the budget your client has for this case to a verdict o r whatever interval you' ve priced the case. A budget of the case. Unless you 're

on a fixed fee , i t would b e a budget. And then at the end of the case, I' m going t o ask you to tell us what was Hawkins R e p o r t i n g S e r v i c e 715 North King Street - Wilmington, Delaware 19801 [phone] FAX [phone]

32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 actually spent to get the verdict, and I will tie that budget number, without being biased or un duly influenced , t o the amount of work I allow to be done in the discovery phase and allow the number o f revitalizations of positions we 'll allow and supplementations by whether or not we 're tracking , t o some ex tent, on the numbers. And the other financial collision we have going on is, you understand , even with the limited re sources that your clients may be willing to spend on the this case o r the ex tensive r esources they may be willing t o spend , you understand. Do they understand? That's why

And they don't .

they' re whining t o the Congress and all that they' re basically throwing that up against a sole practitioner. It' s u nbelievable.

To face, like, an -- even in that patent pilot program we 're talking about, for them to seriously allow us to handle what is thrown over this bench just in our patent cases would require a staff o f ten law clerks, some o f whom would have t o have technical backgrounds. They don 't get any o f that . They look at you

Hawkins R e p o r t i n g S e r v i c e 715 North King Street - Wilmington, Delaware 19801 [phone] FAX [phone]

33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 like you 're crazy . But then you ask them, "How many associates do you have employed in this case as we go to trial ?" Or staff and associates . Never. I'v e

never heard less than double digits .

So maybe we could use this case as one o f our shining ten to twelve examples of how you can get cases through, stay on budget , i f the court has knowledge. Then you have There are

different mechanisms like we do here.

some other things we 'll tag, time t o r esolve discovery disputes. But I 'll send you the whole questionnaire and the data we 're going to collect. You' re now in that study.

Congratulat ions. MR . ANDRE: MS . KEEFE: THE COURT: the client we' re mindful. Sounds like fun. Thank you, Your Honor. At least you can tell We 're not out there

in left field with n o understanding of what they' re going through and what you' re going through to get the litigation completed a s far as both sides and to resources. Hawkins R e p o r t i n g S e r v i c e 715 North King Street - Wilmington, Delaware 19801 [phone] FAX [phone]

34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 June 15t h. those? MS . KEEFE: this whole week. I' m actually traveling I' m going t o deny all the pending motions as moot and order the production just o n the transcript. I'm not going t o enter a second

order of the categories . When do you think you can get

If Your Honor would give m e

until -- not the week o f June 1s t - - the following week , mid week. to my client - THE COURT: That' s the week o f So we' ll say That' s the end I would be able t o g o

That' s the Monday .

produce it by the 19 th of June.

of that week, and you can have a reasonable ex tension. MS . KEEFE: Thank you, Your Honor. MR . ANDRE: Your Honor, I think Yes, Your Honor.

that' s - - with the production they made with their opposition, there was a category of documents where their affirmative defense is they said they produced everything, so we 're okay with that. We don 't want eleventh hour

Hawkins R e p o r t i n g S e r v i c e 715 North King Street - Wilmington, Delaware 19801 [phone] FAX [phone]

35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 surprise s, obviously . But that' s fine .

There was also a category of document requests for sales and marketing. told us they produced those t o u s. They

We haven 't

had a chance t o look at 100,000 pages of documents. If we start taking deposition s and

realize they didn 't produce a lot o f these documents, we would like t o have it on the record that we can r enew that portion of the motion i n some formal way, re -filing the motion or with a less formal letter brief to Your Honor asking for a teleconference. A good example, Facebook announced in the news they just got a $ 200 million financing based o n a $1 0 billion valuing of the company. I don't know if that kind of

information is going to be useful information because George Pacific factors, not that any marked p rojections and stuff would be useful . don't know. We will want that type of information from them i f i t's relevant to our case. We want some process in place where we I

can come back to Your Honor i f w e r eview the Hawkins R e p o r t i n g S e r v i c e 715 North King Street - Wilmington, Delaware 19801 [phone] FAX [phone]

36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 produced. technical documents and don't think they are complete. They are the tenable documents I

think Your Honor has handled. The fourth category, and this is something that we haven 't mentioned today , i s the documents in the previous litigations . There 's two litigations in particular, one involving trade secrets and another involving patent infringement. In those cases , source code was We' ve seen some of the deposition It' s

testimony from the founder of the company . on the web. our case.

W e'r e finding it very relevant to

Their position has been those two litigations don't involve our patent; therefore , it 's not relevant . technology. In those previous litigations , they made admission about their technology, they made other positions that we think would be very relevant. Their only objection for not It involves their

producing i t i s o n the relevancy ground. We don't think there will be any Hawkins R e p o r t i n g S e r v i c e 715 North King Street - Wilmington, Delaware 19801 [phone] FAX [phone]

37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 burden t o producing deposition transcripts, discovery responses, and relevant documents from those litigations without imp licating third parties. We want Facebook' s information from those litigations. any burden. W e don' t think there's

W e think i t's highly relevant. That' s one issue we' d like to

bring to the Court's attention today. will be motion papers, as well. THE COURT: MS . KEEFE: Right.

There

On taking them

backwards, on the prior litigations , w e'r e back to the same problem of Facebook' s technology . It 's everything o n our web site. I actually would prefer that we re visit this issue after w e identify which source code is going to be produced so we can see i f those cases actually did, in fact, touch on the technology in these cases , s o w e'r e not just doing a but you 're Facebook and there was technology at issue, so it must be at issue in this case. So far, that's all w e have , i s Hawkins R e p o r t i n g S e r v i c e 715 North King Street - Wilmington, Delaware 19801 [phone] FAX [phone]

38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 that it' s relevant because it 's about Facebook and about how Facebook developed. Once the technology -- a broad, broad category -- is circumscribed by virtue of this exchange that w e'r e going t o d o now, I think we can revisit the issue and tell whether or not those cases are, in fact, related. if they are , w e'l l produce them. THE COURT: Since you'r e i n the And

study with the test group, you'r e - - i n the test group, you will be -I' m going t o order this category production by June 1 9th , but you 're going to be with Judge Stark, and you' re not going to have to follow the Motion Day procedure. He has agreed to work with me on this study, and, actually, since he 's a younger person and much brighter, he' s going t o b e the one that goes out and talks about the study, I think. He 's out in Berke ley right now a t the program run by Professor Munell. back this weekend. He' ll be

You 'll be able to call him

up and present discovery disputes, and he 's Hawkins R e p o r t i n g S e r v i c e 715 North King Street - Wilmington, Delaware 19801 [phone] FAX [phone]

39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Honor. THE COURT: And you' ll have very track ing the time it takes to re solve them and what you present. And then if you have an objection to his ruling, it 'll come up to me, and I 'm going to schedule it on the telephone. going to agree with you . Let's get the June 1 9th -- I don 't want to be inconsistent in the rulings since he 's going to be taking as part of this group. Let's get that produced first , and then w e'l l take up these, Mr . Andre. MR . ANDRE: That' s fine , Your S o I 'm

go od access to him because we 've limited the cases , and we have this two-page data poll. And, of course , Judge Stark will want to look good, so I think he' s going t o have everything re solved in five days. I think it' s going t o b e good to see what you can do, and - - you know what the other part of that i s? You have to hire a We don 't care i f

person to handle mediation.

you g o there because you both have to agree to Hawkins R e p o r t i n g S e r v i c e 715 North King Street - Wilmington, Delaware 19801 [phone] FAX [phone]

40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 go to mediation. We want you to put somebody o n board and then we 'll give you a reporting interval. It will probably b e every ninety

days, and you can report t o u s that we didn' t meet, so it doesn 't cost anything. We 're tracking it through various stages o f discovery and then right up to the trial. met. But if you d o meet , and you say, "We Progress made. Progress not made."

That' s all we want. Since we 're putting all these financial resources -- again, we have this financial collision with Judge Stark and myself into these cases. We felt that that was

something that was the least cost that we could move out , and what could i t cost you t o retain somebody? $1, 000 or $500 a piece? And you can select them from the list of people we have here. of the judicial officers. You can' t use one

Someone asked me

could they go to Vice Chancellor Parsons, who was a patent litigator at Morris Nichols. H e's

at the Chancery Court, and they have a program Hawkins R e p o r t i n g S e r v i c e 715 North King Street - Wilmington, Delaware 19801 [phone] FAX [phone]

41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Honor. THE COURT: getting to a trial. MS . KEEFE: That sounds easy. W e'r e interested in want. mediator? THE COURT: That 's the point . Sure. Whatever you You where they mediated intellectual property. can g o t o him, or you can agree on somebody that' s i n Silicone Valley. MS . KEEFE: I don't care. You

Could we use a JAMS

You get them .

decide what to pay them , and we' re out of that. But, we' re fulfilling our ADR obligation, and w e'r e not imposing costs on you and not sapping r esources here meeting every -the only thing we 're going to tell you is how often we 're suggesting you report this on anything you'v e done in that regard . It' s

strictly up to the parties to en gage i t. MS . KEEFE: That' s easy , Your

Only one other question , and that i s, with respect, we actually have, just to please Your Honor , w e'v e filed a second motion to compel already. Would you like us to now address that

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42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Judge Stark. Stark. to Judge Stark ? THE COURT: That would go to Judge I

I'm not trying to get rid o f i t.

think you'r e going t o find this test group - we 're trying t o find a way to expeditiously and inexpensively move patent cases through courts, so I think this i s actually going t o b e less arbitrary and more informed for you and get you to the trial date more efficiently. MS . KEEFE: So for this second

motion, it was on Your Honor' s calendar for June 18t h, is that now on Judge Stark' s calendar? THE COURT: We 'll send it down t o

You don't have to use the p atent You'r e going

Motion Day procedure in your case.

to have access to him b y phone call or whatever he sets up with you. He 's going to be tracking volume and that type of thing, which is something you both raised. MS . KEEFE: THE COURT: MR . ANDRE: Thank you, Your Honor. Any other questions? No , thank you.

Hawkins R e p o r t i n g S e r v i c e 715 North King Street - Wilmington, Delaware 19801 [phone] FAX [phone]

43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Hawkins R e p o r t i n g S e r v i c e 715 North King Street - Wilmington, Delaware 19801 [phone] FAX [phone] much. THE COURT: You talked me into I think it 's going MS . KEEFE: No , thank you very

putting you in that group.

to be good for this case, and it 'll get you, hopefully, better decisions and get them more expeditiously. But there i s that one order, so order ed on this transcript , for June 1 9th . We 'll be in re cess. (Proceeding ended at 11 :15 a. m.)

44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Hawkins R e p o r t i n g S e r v i c e 715 North King Street - Wilmington, Delaware 19801 [phone] FAX [phone] _ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ _ DEANNA WARNER Professional Reporter and Notary Public CERTIFICATION I, DEANNA WARNER, Professional Reporter , certify that the foregoing i s a true and accurate transcript of the foregoing proceeding . I further certify that I am neither attorney nor counsel for, nor related to nor employed by any o f the parties t o the action in which this proceeding was taken ; further , that I am not a relative or employee of any attorney o r counsel employed in this case, nor am I financially interested in this action.