Motorola Mobility, Inc. v. Apple, Inc.

Filing 276

NOTICE by Apple, Inc. of Filing Declaration of Jill J. Ho in Support of Apple Inc.'s Motion for Leave to File Amended Answer and Exhibits Thereto (Attachments: # 1 Affidavit Declaration of Jill J. Ho in Support of Apple Inc.'s Motion for Leave to File Amended Answer, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S)(Pace, Christopher)

EXHIBIT I

AO 88A (Rev. 06109) Subpoena to Testify at a Deposition in a Civil Action

UNITED STATES DISTRICT COURT
for the
Southern District of New York
.......

_ Motorola Mobility, Inc.
_-_ _...

----'-'----~

Plaintiff

v.

Apple Inc.
Defendant

)
)
)
)
)
)

Civil Action No.

1:10cv023580-Civ-UU

(If the action is pending in another district, state where:

Southern District of Florida

SUBPOENA TO TESTIFY AT A DEPOSITION IN A CIVIL ACTION
To: Cablevision Systems Corporation, Legal Department, 111 Stewart Avenue, Bethpage, NY 11714

~ Testimony: YOU ARE COMMANDED to appear at the time, date, and place set forth below to testify at a
deposition to be taken in this civil action. If you are an organization that is not a party in this case, you must designate
one or more officers, directors, or managing agents, or designate other persons who consent to testify on your behalf
about the following matters, or those set forth in an attachment:
See Exhibit A
-···-]bate-·~~d-Tu;~:

,Place: Ellen Grauer Court Reporting

l.__...~~~~;~;k~_~~_~~g~~

5th Floor

The deposition will be recorded by this method:

o

-----

--.----------------.~

12/12/20119:00 am
-----

-~

---

-

-

-- -

-

--

--~~~--

Certified Shorthand Reporter and Videographer

Production: You, or your representatives, must also bring with you to the deposition the following documents,
electronically stored information, or objects, and permit their inspection, copying, testing, or sampling of the
material:

The provisions of Fed. R. Civ. P. 45(c), relating to your protection as a person subject to a subpoena, and Rule
45 (d) and (e), relating to your duty to respond to this subpoena and the potential consequences of not doing so, are
attached.
Date:

11/18/2011

CLERK OF COURT
OR
Signature of Clerk or Deputy Clerk

.~j~~f;~:,._;jfod~;mJmedCNI' (
C
Attorney's signature

The name, address, e-mail, and telephone number of the attorney representing (name ofparty)
Apple Inc.
Azra. Hadzimehmedovic, Tensegrity La."",Group LLP
, who issues or requests this subpoena, are:
201 Redwood Shores Pkwy., Suite 401, Redwood Shores, CA 94065
1-650-802-6055
[e-mail]

AO 88A (Rev. 06/09) Subpoena to Testify at a Deposition in a Civil Action (Page 2)

Civil Action No. 1:10cv023580-Civ-UU
PROOF OF SERVICE
(This section should not be filed with the court unless required by Fed. R. Civ. P. 45.)

This subpoena for (name ofindividual and title. if any)

Cablevision Systems Corporation

was received by me on (date)

o

I served the subpoena by delivering a copy to the named individual as follows:

- - _...- .._._._....__

o

.~~-

----_

_

.

on (date)

I returned the subpoena unexecuted because:
......

;or

_----_._-----------

Unless the subpoena was issued on behalf of the United States, or one of its officers or agents, I have also
tendered to the witness fees for one day's attendance, and the mileage allowed by law, in the amount of
$
~--~

My fees are $

....__ ...._ - - - - - - -

for travel and $

for services, for a total of $
.~---

I declare under penalty of perjury that this information is true.

Date:
Server's signature

Printed name and title

Server's address

Additional information regarding attempted service, etc:

0.00

AO 88A (Rev. 06/09) Subpoena to Testify at a Deposition in a Civil Action (Page 3)

Federal Rule of Civil Procedure 45 (c), (d), and (e) (Effective 12/1/07)
(c) Protecting a Person Subject to a SUbpoena.
(1) Avoiding Undue Burden or Expense; Sanctions. A party or
attorney responsible for issuing and serving a subpoena must take
reasonable steps to avoid imposing undue burden or expense on a
person subject to the subpoena. The issuing court must enforce this
duty and impose an appropriate sanction - which may include lost
earnings and reasonable attorney's fees -- on a party or attorney
who fails to comply.
(2) Command to Produce Materials or Permit Inspection.
(A) Appearance Not Required. A person commanded to produce
documents, electronically stored information, or tangible things, or
to permit the inspection of premises, need not appear in person at the
place of production or inspection unless also commanded to appear
for a deposition, hearing, or triaL
(B) Objections. A person commanded to produce documents or
tangible things or to permit inspection may serve on the party or
attorney designated in the subpoena a written objection to
inspecting, copying, testing or sampling any or all of the materials or
to inspecting the premises - or to producing electronically stored
information in the form or forms requested. The objection must be
served before the earlier of the time specified for compliance or 14
days after the subpoena is served. If an objection is made, the
following rules apply:
(i) At any time, on notice to the commanded person, the serving
party may move the issuing court for an order compelling production
or inspection.
(ii) These acts may be required only as directed in the order, and
the order must protect a person who is neither a party nor a party's
officer from significant expense resulting from compliance.
(3) Quashing or ModifYing a Subpoena.
(A) When Required. On timely motion, the issuing court must
quash or modify a subpoena that:
(i) fails to allow a reasonable time to comply;
(ii) requires a person who is neither a party nor a party's officer
to travel more than 100 miles from where that person resides, is
employed, or regularly transacts business in person - except that,
subject to Rule 45(c)(3)(B)(iii), the person may be commanded to
attend a trial by traveling from any such place within the state where
the trial is held;
(iii) requires disclosure of privileged or other protected matter, if
no exception or waiver applies; or
(iv) subjects a person to undue burden.
(B) When Permitted. To protect a person subject to or affected by
a subpoena, the issuing court may, on motion, quash or modify the
subpoena if it requires:
(i) disclosing a trade secret or other confidential research,
development, or commercial information;
(ii) disclosing an unretained expert's opinion or information that
does not describe specific occurrences in dispute and results from
the expert's study that was not requested by a party; or
(iii) a person who is neither a party nor a party's officer to incur
substantial expense to travel more than 100 miles to attend triaL
(C) Specifying Conditions as an Alternative. In the circumstances
described in Rule 45(c)(3)(B), the court may, instead of quashing or
modifying a subpoena, order appearance or production under
specified conditions if the serving party:
(i) shows a substantial need for the testimony or material that
cannot be otherwise met without undue hardship; and
(ii) ensures that the subpoenaed person will be reasonably
compensated.

(d) Duties in Responding to a SUbpoena.
(1) Producing Documents or Electronically Stored Information.
These procedures apply to producing documents or electronically
stored information:
(A) Documents. A person responding to a subpoena to produce
documents must produce them as they are kept in the ordinary
course of business or must organize and label them to correspond to
the categories in the demand.
(B) Form for Producing Electronically Stored Information Not
Specified. If a subpoena does not specify a form for producing
electronically stored information, the person responding must
produce it in a form or forms in which it is ordinarily maintained or
in a reasonably usable form or forms.
(C) Electronically Stored Information Produced in Only One
Form. The person responding need not produce the same
electronically stored information in more than one form.
(D) Inaccessible Electronically Stored Information. The person
responding need not provide discovery of electronically stored
information from sources that the person identifies as not reasonably
accessible because of undue burden or cost. On motion to compel
discovery or for a protective order, the person responding must show
that the information is not reasonably accessible because of undue
burden or cost. If that showing is made, the court may nonetheless
order discovery from such sources if the requesting party shows
good cause, considering the limitations of Rule 26(b)(2)(C). The
court may specify conditions for the discovery.
(2) Claiming Privilege or Protection.
(A) Information Withheld. A person withholding subpoenaed
information under a claim that it is privileged or subject to
protection as trial-preparation material must:
(i) expressly make the claim; and
(ii) describe the nature of the withheld documents,
communications, or tangible things in a manner that, without
revealing information itself privileged or protected, will enable the
parties to assess the claim.
(B) Information Produced. If information produced in response to a
subpoena is subject to a claim of privilege or of protection as trialpreparation material, the person making the claim may notify any
party that received the information of the claim and the basis for it.
After being notified, a party must promptly return, sequester, or
destroy the specified information and any copies it has; must not use
or disclose the information until the claim is resolved; must take
reasonable steps to retrieve the information if the party disclosed it
before being notified; and may promptly present the information to
the court under seal for a determination of the claim. The person
who produced the information must preserve the information until
the claim is resolved.
(e) Contempt. The issuing court may hold in contempt a person
who, having been served, fails without adequate excuse to obey the
subpoena. A nonparty's failure to obey must be excused if the
subpoena purports to require the nonparty to attend or produce at a
place outside the limits of Rule 45(c)(3)(A)(ii).

EXHIBIT A TO CABLEVISION SUBPOENA
I. Definitions and Instructions
The following definitions and instructions shall apply to these requests:
1.

The terms "You," "Your," or "Cablevision" shall mean Cablevision

Systems Corporation, and any and all past and present parent, sister, affiliate, subsidiary,
partnership, joint venture, predecessor-in-interest, successor-in-interest, division,
department, corporate subunit, or other business entity; and any and all past and present
officers, directors agents, employees, consultants, attorneys, and other persons or entities
acting or purporting to act on behalf of any of the foregoing.
2.

The term "Apple" shall mean Apple Inc. and its predecessor, Apple

Computer Inc., and including without limitation all of its corporate locations, and all
predecessors, subsidiaries, parents, and affiliates, and all past or present directors,
officers, agents, representatives, employees, consultants, attorneys, entities acting in
joint-venture or partnership relationships with Apple, and others acting on behalf of
Apple.
3.

The term "Motorola Solutions" is defined to mean and refer to

Motorola Solutions, Inc. and all of its corporate locations, and all predecessors,
subsidiaries, parents, and affiliates, including without limitation Motorola, Inc. and all
past or present directors, officers, agents, representatives, employees, consultants,
attorneys, entities acting in joint-venture or partnership relationships with the
aforementioned entities, and others acting on their behalf.
4.

The term "Motorola Mobility" shall mean and refer to Motorola

Mobility, Inc. and all of its corporate locations, and all predecessors, subsidiaries,
parents, and affiliates, including without limitation Motorola SpinCo Holdings Corp., and
all past or present directors, officers, agents, representatives, employees, consultants,

1

attorneys, entities acting in joint-venture or partnership relationships with the
aforementioned entities, and others acting on their behalf.
5.

The term "Motorola" shall mean Motorola, Inc. and Motorola

Mobility, Inc., and all of their corporate locations, and all predecessors, subsidiaries,
parents, and affiliates, including without limitation Motorola SpinCo Holdings Corp. and
all past or present directors, officers, agents, representatives, employees, consultants,
attorneys, entities acting in joint-venture or partnership relationships with the
aforementioned entities, and others acting on their behalf.
6.

“Motorola Accused Set-Top Box System(s)" shall mean all set-top

boxes, including but not limited to DVR boxes, that provide or operate in conjunction
with an interactive user interface for managing or selecting programs or services (e.g.,
TV programs or DVR functions), and associated hardware, including remote control
devices, and software, including user interfaces, interactive programming guides, and
other application software designed for use on, and loaded onto, such devices that are
designed, made, used, developed, researched, tested, sold, offered for sale, manufactured,
or imported by or at the direction of Motorola , including but not limited to: DCT700,
DCT2500, DCT3400, DCT6412, DCT3080, DCT6200, DCT6208, DCT6400, DCT6412,
DCX700, DCX3200, DCX3200 P2, DCX3400, DCX 3501-M, DCH70, DCH100,
DCH200, DCH3200, DCH3416, DCH6200, DCH6208, DCH6412, DCH6416, DTA100,
QIP2500, QIP2708, QIP6200, QIP6412, QIP6416, QIP7100, QIP7216, and DRC800.
7.

The term "Software" means all forms of code, including Source

Code, object code, firmware, compiled code, byte code, interpreted code, any form of
code stored in any storage.
8.

The term "Software Module" means a logical grouping of Source

Code, including but not limited to frameworks, libraries, application programming
interfaces, layers, components, and services.

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9.

The term "action" is defined to mean the above-captioned case

pending before the United States District Court for the Southern District of Florida,
entitled Motorola Mobility, Inc. v. Apple Inc. and Apple Inc. v. Motorola Inc. and
Motorola Mobility Inc., Case No. 1:10cv023580-Civ-UU.
10.

The term "Apple Patent(s)-in-Suit" shall mean, individually and

collectively, 5,583,560, 5,594,509, and 5,621,456.
11.

The term "all" shall mean "any and all," so as to bring within the

scope of the requests herein all documents and things that otherwise might be construed
to be outside its scope.
12.

The terms "and" as well as "or" shall be construed disjunctively or

conjunctively as necessary to bring within the scope of a request all information that
might otherwise be construed to be outside its scope
13.

The terms "any" or "each" should be understood to include and

encompass "all."
14.

The terms "communication" and "correspondence" are used in a

comprehensive sense, and mean, refer to, and include any instance in which any person
has had contact with any other person including by any oral or written utterance,
question, comment, inquiry, notation, or statement of any nature whatsoever, by and to
whomsoever made, including (but not limited to) writings, documents, correspondence,
conversations, dialogues, discussions, interviews, consultations, agreements, and
understandings.
15.

The terms "concern," "concerning," "evidencing," "relating to,"

"relate," "relates to," "related to," "referring or relating to," "referring to," "regarding,"
"comprising," "comprise," and "refer or relate to" mean, in whole or in any part, alluding
to, responding to, concerning, relating to, connected with, involving, commenting on, in
respect of, about, associated with, discussing, evidencing, showing, describing, reflecting,

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analyzing, summarizing, memorializing, consisting of, constituting, identifying, stating,
tending to support, tending to discredit, referring to, or in any way touching upon.
16.

The terms "Document" and "Documents" shall be construed under

the broadest construction under the Federal Rules of Civil Procedure, and shall include
any reduction of communication, information, or data to tangible form, including
computer or magnetic memory or storage, and any written, recorded, or filmed graphic
matter of any kind or nature, however produced or reproduced, including originals, drafts,
or non-identical copies, wherever located. The term "documents" shall include (but is not
limited to) books, contracts, agreements, correspondence, computer tapes, discs,
printouts, keypunch cards, e-mail entries, memoranda, diaries, notes, reports, bulletins,
printed forms, telegraphic communications, pleadings and other legal papers, notes,
telexes, telegrams, telecopies, facsimile reproductions or "faxes," factual compilations,
data compilations, statistical compilations, plans, diagrams, journals, change orders,
studies, surveys, sketches, art work, graphics, checks ledgers, catalogues, brochures,
pamphlets, press releases, advertisements, invoices, minutes, photographs, microfilms,
microfiche, films, personnel files, quotes, stenographic notes, computer discs, telephone
records, schedules, bids, voice recordings, transcriptions, and television commercial
photoboards. This definition shall apply to all documents on the particular subject in your
possession, custody, or control, or that of your attorneys, agents, employees, officers,
directors, or representatives, irrespective of who generated, prepared, or signed the
documents. The term "document" or "documents" shall also include all attachments,
appendices and enclosures to the document.
17.

The term "Thing" shall be construed under the broadest possible

construction under the Federal Rules of Civil Procedure.
18.

The terms "or" and "including," and similar words of guidance, are

merely intended as guidance and should not be construed as words of limitation; the word

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"or," for example, shall include the word "and," as appropriate, and the word "including"
shall not be used to limit any general category description that precedes it.
19.

The term "Person" means, refers to, and includes any natural

individual in any capacity whatsoever, and all entities of every description, including but
not limited to, associations, organizations, companies, partnerships, joint ventures,
corporations, trusts, and estates, and all divisions, departments, and other such units
thereof or therein.
20.

You are required to respond to these requests for production

drawing upon all materials in your actual or constructive possession, custody, or control,
including materials that you have a right to secure from any other source. These sources
include (but are not limited to) your attorneys, agents, officers, and employees.
21.

In the event that you make a proper and timely objection to any

individual document production request or a portion thereof, please respond to all
portions of that request that do not fall within the ambit of your objection.
22.

Documents from any single file should be produced in the same

order they were found in such file. If copies of documents are produced in lieu of the
originals, such copies should be legible and bound or stapled in the same manner as the
original.
23.

For any document request that is objected to on the ground of

privilege, the work product doctrine or any other purported privilege or immunity from
discovery or right of privacy, please provide the following information: (a) the basis for
the objection sufficient to establish the privilege or doctrine asserted; (b) a brief
identification and description of the withheld document, to the extent it can be done
without violating such privilege or doctrine, including:
(i)

the type of document (e.g., letter, memorandum, notes,
reports, etc.);

(ii)

date;

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(iii)
(iv)

subject matter;

(v)

name(s) of author or signer; and

(vi)
24.

title;

name(s) of all recipients.

If you object that a term or phrase is vague, ambiguous, or

indefinite then provide your understanding of the term or phrase and respond
accordingly.
25.

These requests include all attachments to the specifically described

documents, along with envelopes, explanatory notes, memoranda and all other such
material that accompanied the document. If the specific document requested elicited a
response, that response is included in the category of requested documents. If the
document itself was a response, the document to which it is responding is included in the
category of requested documents.
26.

The past tense shall be construed as the present tense or the future

tense, and the future tense as the present or past tense, so as to bring within the scope of
the requests herein all documents or writings that might otherwise be construed to be
outside the scope.

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II. Topics for Examination
1.

Communications between You (or anyone acting on Your behalf)

and Motorola (or anyone acting on behalf of Motorola) regarding any of the Apple
Patents-in-Suit or any litigation involving both Apple and Motorola, including but not
limited to this action.
2.

Communications between You (or anyone acting on Your behalf)

and Motorola (or anyone acting on behalf of Motorola) regarding the Motorola Accused
Set-Top Box Systems.
3.

Any agreement, contract, license, understanding, or arrangement

between You and Motorola concerning any Motorola Accused Set-Top Box Systems,
including but not limited to any exclusivity agreements.
4.

All payments made by You to Motorola, or received by You from

Motorola, related to any Motorola Accused Set-Top Box Systems since June 22, 1993.
5.

Any plan or attempt to design any Motorola Accused Set-Top Box

Systems to avoid infringement of the Apple Patents-in-Suit.
6.

All set-top boxes sold, leased, rented, or otherwise offered by You

to Your customers since June 22, 1993, including at least the make, model, and
manufacturer of each such set-top box.
7.

All Software installed on the Motorola Accused Set-Top Box

Systems offered by You to Your customers, including without limitation interactive
programming guide and remote control software.
8.

For each Software identified in Topic 7: (i) the author(s) of the

Software; (ii) the version of the Software; (iii) the function(s) of the Software; and (iv)
whether the Software was installed by You, Motorola, or another Person.
9.

Any design, development, modification, implementation, testing, or

maintenance by You, alone or in collaboration with Motorola or any other Person, of any

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Motorola Accused Set-Top Box Systems, including without limitation the nature of any
collaboration and the identities and responsibilities of all Persons involved.
10.

All remote controls offered by You to Your customers and intended

by You to operate with any Motorola Accused Set-Top Box Systems since June 22, 1993,
including without limitation the make, model, and manufacturer of each such remote
control.
11.

The proportion of each Motorola Accused Set-Top Box System

sold, leased, rented, or otherwise offered to Your customers since June 22, 1993 as
compared to all set-top boxes sold, leased, or otherwise offered to Your customers since
that date.
12.

Promotions and sales, planning and strategy, focus group

information, press releases, market analyses, analyst reports, and competitive analyses
specifically relating to each Motorola Accused Set-Top Box System.
13.

Any advice, guidance, instruction, service, assistance, or other

contribution provided by You to Motorola or any other Person, or received by you from
Motorola or any other Person, concerning the Motorola Accused Set-Top Box Systems,
including but not limited to instructions, tutorials, how-to guides, manuals, and other
instructional or educational resources that You offer publicly or privately.

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