Motorola Mobility, Inc. v. Apple, Inc.

Filing 235

REPLY to Response to Motion re 224 MOTION to Compel Responses to Interrogatories Regarding Set-Top Box Patents (Nos. 19-22) filed by Apple, Inc.. (Attachments: # 1 Affidavit Declaration of Jason Lang, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D)(Pace, Christopher) Modified on 2/10/2012 (ls).

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA
Case No. 1:10cv023580-Civ-RNS-TEB

MOTOROLA MOBILITY, INC.,
Plaintiff,

JURY TRIAL DEMANDED

v.
APPLE INC.,
Defendant.
APPLE INC.,
Counterclaim Plaintiff,
v.
MOTOROLA, INC. and
MOTOROLA MOBILITY, INC.,
Counterclaim Defendants.

DECLARATION OF J. JASON LANG IN SUPPORT OF APPLE INC.’S
MOTION TO COMPEL RESPONSES TO INTERROGATORIES
REGARDING SET-TOP BOX PATENTS (NOS. 19-22)

I, J. Jason Lang, declare under penalty of perjury, that the following is true and
correct:
1.

I am a member of the bar of the State of California, admitted pro hac vice in this

action and an associate at the law firm of Weil, Gotshal & Manges LLP, counsel of
record for Apple Inc. (“Apple”) in the above-captioned matter. The matters referred to in
this declaration are based on personal knowledge and if called as a witness I could, and
would, testify competently to these matters.
2.

On January 18, 2012, after Motorola did not supplement its responses to Apple’s

Interrogatory Nos. 19-22, my colleague Jill Ho1 and I participated in a teleconference
with Marshall Searcy and John Duchemin of Quinn Emanuel Urqhart & Sullivan, LLP,
counsel for Motorola. During this call, Mr. Searcy stated that Motorola believed its
supplementation was complete and did not intend to provide further supplementation of
any of its interrogatory responses. I pointed out that Motorola’s own documents suggest
that it is not only in possession of interactive programming guide code, but it is involved
in the development and testing of such source code. I specifically referenced prior
correspondence in which I described such documents produced by Motorola.

My

January 3, 2012 email to John Duchemin was attached as Exhibit U to the Declaration of
Jill J. Ho in Support of Apple’s Motion to Compel Responses to Interrogatories
Regarding Set-Top Box Patents (Nos. 19-22).

See D.E. 224-22.

In response,

Mr. Duchemin suggested that I was reading the documents incorrectly, had reached the
wrong conclusion, and that I would have an opportunity to ask questions at the deposition
1

Ms. Ho is currently in the process of adopting her married name, Jill Schmidt.

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of Motorola’s 30(b)(6) witness, when that deposition was scheduled. At no time during
this conversation did Mr. Searcy or Mr. Duchemin state that Motorola was refusing to
supplement its responses because Apple’s interrogatories were overbroad or vague.
3.

On January 24, 2012, Ms. Ho and I met and conferred again with Mr. Searcy and

Mr. Duchemin. During this call, Mr. Searcy confirmed that Motorola would not be
supplementing its responses to Apple’s Interrogatory Nos. 19-22. I asked Mr. Searcy
whether we were at an impasse, and Mr. Searcy responded yes. At no time during this
meet and confer did Mr. Searcy or Mr. Duchemin suggest that Motorola was refusing to
supplement its responses because Apple’s interrogatories were overbroad or vague.
4.

On February 6, 2012, I spoke with David Benyacar, counsel for third parties Time

Warner Cable and Bright House Networks, regarding subpoenas served by Apple
requesting information about which interactive program guides are used and installed on
the Motorola accused set-top boxes. Mr. Benyacar informed me that Motorola was in
possession of this information. Attached hereto as Exhibit A is a true and correct copy of
a February 6, 2012 email from me to Mr. Benyacar memorializing our conversation.
5.

Following my conversation with Mr. Benyacar, I wrote to Mr. Duchemin, to

renew Apple’s request that Motorola provide the information in its possession regarding
which interactive program guides are installed on the Motorola accused set-top boxes, the
number of each Motorola accused set-top box sold to Time Warner Cable and Bright
House Networks, and how the interactive program guides are installed.

I further

requested similar information for other cable providers that provide Motorola accused
set-top boxes to end-users. Attached hereto as Exhibit B is a true and correct copy of a
February 7, 2012 email from Mr. Duchemin to me, responding to that request.

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Mr. Duchemin stated that Motorola was in the process of producing, to the extent
available to Motorola, such information and confirmed that Motorola is in possession of
“information regarding the identity of interactive programming guides that are installed
onto certain of the accused set-top boxes.” Mr. Duchemin also explained his view that
this was not inconsistent with Motorola’s interrogatory responses because “installation of
IPGs occurs post-sale, after the accused set-top boxes are received by Motorola’s
customers.”
6.

Attached hereto as Exhibit C is a true and correct copy of a February 8, 2012

email from Mr. Duchemin to me, further clarifying that Motorola intended to produce
responsive documents.

Specifically, Mr. Duchemin explained, “Motorola has stated

since mid-November 2011, immediately after Apple sent its subpoenas to Motorola’s
customers, that it may be able to assist in producing documents on behalf of its
customers, and is now doing so at its customers’ requests.” Attached hereto as Exhibit D
is a true and correct copy of the attachment to Mr. Duchemin’s February 8, 2012 email.

I declare under penalty of perjury under the laws of the United States of America
that the foregoing is true and correct.
Executed on February 9, 2012 at Redwood Shores, California
_______/s/ J. Jason Lang____________
J. Jason Lang

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