Motorola Mobility, Inc. v. Apple, Inc.

Filing 225

MOTION to Compel Responses to Interrogatories Nos. 7 and 12 Regarding Products Embodying Motorola's Asserted Patents and Accompanying Memorandum of Law in Support by Apple, Inc.. Responses due by 2/16/2012 (Attachments: # 1 Affidavit Declaration of Elena Dimuzio, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Text of Proposed Order)(Pace, Christopher)

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EXHIBIT 17 DiMuzio, Elena From: Sent: To: Cc: Subject: DiMuzio, Elena Monday, December 26, 2011 10:03 PM Marshall Searcy; David Perlson; Moto-Apple-SDFL Weil_TLG Apple Moto FL External; AppleCov RE: Apple/Moto SDFL: Letter re Production of Embodying Products Marshall, We respectfully disagree with your characterization of these cases. Both of them order production of the same type of information Apple seeks here. Motorola has cited no authority supporting its position. Unless you have a specific proposal which forecloses the possibility that Motorola claims damages it is not entitled to claim, it seems there is nothing further to discuss, and we will make our motion. If you do have such a proposal, please put it in writing by December 30, 2011, and we will consider it. Best Regards, Elena. From: Marshall Searcy [mailto:marshallsearcy@quinnemanuel.com] Sent: Friday, December 23, 2011 11:11 AM To: DiMuzio, Elena; David Perlson; Moto-Apple-SDFL Cc: Weil_TLG Apple Moto FL External; AppleCov Subject: RE: Apple/Moto SDFL: Letter re Production of Embodying Products Elena, I’ve looked at your prior correspondence and the two cases cited. We disagree with Apple’s characterization of Aristocrat and Facebook. Facebook does not support the notion that Motorola should be required to identify all embodiments of its asserted patents. To the contrary, the Facebook court recognized that “This case is fundamentally about whether Facebook infringes Leader’s patent, not about whether Leader practice its own patent.” Leader Techs. Inc. v. Facebook Inc., No. 08-862-JJF-LPS, 2009 WL 3021168, at * 2 (D. Del. Sept. 4, 2009). Likewise, in Aristocrat Techs., while the moving party had asked the other side to identify embodying products, it limited its request to just ten such products. Aristocrat Techs. v. International Game Tech., No. 06-03717 RMW, 2009 WL 3573327, at *2 (N.D. Cal. Oct. 30, 2009) (“In this interrogatory, IGT requests Aristocrat to “[e]xplain fully whether the following games, products, systems, software and/or controllers do or do not practice, or are or are not capable of practicing, any method claimed in the Asserted Patents, and your factual and legal bases for that.” The request goes on to list ten such games or products.” (emphasis added)). Here, even with the narrowing of Interrogatory No. 12 suggested in your December 14 letter, Apple is still asking Motorola to conduct a further review of additional Motorola products and services to see if they embody claims of the Motorola patents in suit. We don’t see any reason to conduct such an analysis, especially in light of the fact that the parties have already identified products that they contend relate to the patents in suit. Accordingly, we cannot agree to Apple’s December 14 proposal. That being said, we are still amenable to finding a compromise. I will be available after 3 pm today if you would like to discuss further alternative proposals. 1 From: DiMuzio, Elena [mailto:edimuzio@cov.com] Sent: Wednesday, December 21, 2011 12:30 PM To: Marshall Searcy; David Perlson; Moto-Apple-SDFL Cc: Weil_TLG Apple Moto FL External; AppleCov Subject: FW: Apple/Moto SDFL: Letter re Production of Embodying Products Marshall, As requested, here is the letter proposing a limitation to the parties’ discovery requests on embodying products. I believe the proposed limitation addresses the concerns you raised about our request being over- broad and unduly burdensome. However, there are numerous decisions compelling production of information relating to all products embodying the asserted claims (as our Interrogatory 12 requests). See, for example, Leader Techs. Inc. v. Facebook Inc., No. 08-862-JJF-LPS, 2009 WL 3021168 at *2 (D. Del. Sept. 4, 2009) (“Facebook is entitled to know every Leader product or service that Leader contends practices any of the asserted claims of the patent-in-suit. Facebook is also entitled to know which claims are practiced by which of Leader's products and services.”). We have found no authority to support Motorola’s refusal to produce on this point. Please let me know if you are available on Friday to continue this discussion. Thanks. Best Regards, Elena. From: DiMuzio, Elena Sent: Wednesday, December 14, 2011 5:20 PM To: David Perlson; Moto-Apple-SDFL Cc: Weil_TLG Apple Moto FL External; AppleCov Subject: Apple/Moto SDFL: Letter re Production of Embodying Products David, Please see attached letter. Best Regards, Elena. Elena DiMuzio| Associate | COVINGTON & BURLING LLP One Front Street | San Francisco, CA 94111 |Phone: 415.591.7032 | Fax: 415.955.6532 | edimuzio@cov.com 2

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