Red Bend Software, Inc. et al v. Google

Filing 100

DECLARATION re 99 MOTION to Compel Production of Documents of Jennifer Tempesta by Red Bend Software, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7)(Tempesta, Jennifer)

Red Bend Software, Inc. et al v. Google

Doc. 100 Att. 1

EXHIBIT 1

Dockets.Justia.com

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS EASTERN DIVISION RED BEND LTD., and RED BEND SOFTWARE INC., Civil Action No. 09-cv-11813-DPW Plaintiffs, v. GOOGLE INC., Defendant.

PLAINTIFFS' FIRST SET OF REQUESTS FOR PRODUCTION (NOS. 1-70) Plaintiffs Red Bend Ltd. and Red Bend Software Inc. ("Red Bend") by and through their undersigned counsel, hereby propound the following requests for production to Defendant Google Inc. ("Google") pursuant to Rules 26 and 34 of the Federal Rules of Civil Procedure. Red Bend hereby requests that Google produce the following documents at the offices of Baker Botts L.L.P., 30 Rockefeller Plaza, 44th Floor, New York, NY 10112, within thirty (30) days. This request shall be deemed continuing and requires production of any documents called for herein of any such documents which shall come within the custody or control of Google or its agents or representatives at any time between Google's initial production and the further prosecution of this action.

DEFINITIONS In addition to the uniform definitions provided by Local Rule 26.5, the following terms listed below are defined as follows: A. "Red Bend" shall mean Red Bend Ltd. and Red Bend Software Inc. and their

respective officers, directors, and employees, individually and/or collectively. B. "Google" shall mean Google Inc. and its officers, directors, and employees,

individually and/or collectively. C. A "Third Party" shall mean any natural persons, corporations, partnerships,

associations, joint ventures, government bodies, agencies or any other legal entities other than Red Bend and Google. D. "Communication" means the transmittal of information (in the form of facts,

ideas, inquiries or otherwise). E. "Document" is defined to be synonymous in meaning and equal in scope to its

usage in Fed. R. Civ. P. 34(a), including, without limitation, electronic or computerized data compilations. A draft or non-identical copy is a separate document within the meaning of this term. F. The term "all documents" means every document known to you and every such

document which can be located or discovered by reasonably diligent efforts, including all documents within your possession, custody or control or the possession, custody, or control of your attorneys, accountants or agents; documents that you have a legal right to obtain; documents that you have a right to copy or have access to; and documents that you have placed in the temporary possession, custody, or control of any third person. G. The connectives "and" and "or" shall be construed either disjunctively or

conjunctively as necessary to bring within the scope of the discovery request all responses that might otherwise be construed to be outside of its scope. H. I. The use of the singular form of any word includes the plural and vice versa. "The `552 Patent" means U.S. Patent No. 6,546,552. -2-

J.

The terms "infringe" and "valid" shall be construed in accord with the meaning

given those terms under Title 35, United States Code.
K.

"Prior Art" is used herein in the same sense that it is used in 35 U.S.C. § 103, and

includes but is not limited to any United States or foreign patent, printed publication, prior knowledge, prior use, prior sale or offer for sale, or other act or event defined in 35 U.S.C. §§ 102, 103 taken alone or in combination. L. "Delta Update" means any technique for updating an executable program or data

table that involves comparing (directly or indirectly) two versions of an executable program or data table to generate a representation of the differences between the two versions.
M.

"Courgette" means the Delta Update algorithm referred to as "Courgette" at at

http://blog.chromium.org/2009/07/smaller-is-faster-and-safer-too.html,

http://dev.chromium.org/developers/design-documents/software-updates-courgette, and/or any other Delta Update algorithm used by Google wherein the old and new versions of the data or program to be updated are transformed into an alternate representation prior to comparing the two versions for differences. N. "Open Source" refers to source code that freely available for others to use, subject

to a standard open source license. O. The term "this action" refers to Civil Action No. 09-cv-11813-DPW (D. Mass.). INSTRUCTIONS A. If you contend any request is objectionable in whole or in part, state with

specificity all grounds for objection, and produce all documents and things responsive to those parts of the request as to which no objection is made. B. If you refuse to supply any information responsive to any request on the basis of

privilege, set forth with respect to each such request: a. b. c. the nature of the privilege; the type or general description of the document or thing; the general subject matter of the document or thing; -3-

d. e.

the date on which the document or thing was created; the name and address of the author(s), addressee(s), and recipient(s), and,

where not apparent from the identification alone, the relationship of such persons to each other; f. the name and address of each person who has received or otherwise had

access to the document involved or copies thereof, or with whom the document was discussed, and the capacity in which the person had access thereto; and g. all facts upon which a court may conclude that the privilege asserted was

waived (e.g., its disclosure to a third party). C. Produced documents should be numbered sequentially and produced in the format

agreed to by the parties memorialized in correspondence from counsel for Google dated December 7, 2009 D. In producing documents, furnish all documents known or available to you,

regardless of whether the documents are possessed directly by you, or any parent, subsidiary, or affiliated corporation, or any of your officers, directors, employees, agents, representatives, auditors, present or former contractors, accountants, attorneys, consultants, predecessors in interest, or any and all other persons acting or purporting to act on your behalf. E. If any documents are no longer in your possession, custody, or control, or

otherwise are not available or accessible to the full extent requested, state whether the documents were lost, destroyed, or otherwise disposed of and describe the date and circumstances of such disposition. F. The Requests are continuing and require, to the extent authorized by Rule 26(e) of

the Federal Rules of Civil Procedure, production of any additional responsive documents that may be located or acquired by you or your employees after the date of your original production

-4-

REQUESTS FOR PRODUCTION 1. All documents reflecting or referring to techniques for generating and/or

distributing Chrome updates used by Google prior to its use of Courgette, including but not limited to any Delta Update technique used to update Chrome prior to Courgette. 2. 3. All documents concerning or relating to the decision to develop Courgette. All documents concerning or relating to the development and operation of

Courgette, including but not limited to copies of the source code of all versions of Courgette that Google has used to generate at least one update for Chrome. 4. 5. All documents concerning or relating to the use by Google of Courgette. All documents concerning or relating to the download, use, or attempted use by

non-parties of Courgette, including, but not limited to, documents sufficient to show (a) the number of times the Courgette source code was accessed or downloaded, and (b) the identity of each machine or person accessing or downloading the source code. 6. All documents concerning or relating to any communication between Google and

any other person or entity (excluding Google's outside counsel) regarding Courgette. 7. All documents concerning or relating to Google's decision (a) to release

Courgette as open source, and/or (b) to announce Courgette as a "new" algorithm, including any document constituting, reflecting or referring to a discussion related to either or both of the foregoing. 8. All documents concerning or relating to Google's decision to seek or not to seek

patent protection over Courgette or any aspect of Courgette, including any invention description form or patent application or prosecution file relating to Courgette or any aspect of Courgette. 9. All documents concerning or relating to any prior art study relating to Courgette

or the `552 Patent. 10. All documents concerning or relating to the need for Courgette and/or Google's

statement in the Chromium Developer Documentation that it "tried several binary diff algorithms." -5-

11.

All documents concerning or relating to (a) the "more detailed paper on

Courgette" referenced in the Chromium Developer Documents and/or any drafts thereof, and/or (b) the decision to publish or not to publish that paper. 12. All documents concerning or relating to Red Bend or any of the following Red

Bend employees: Yoram Salinger, Sharon Peleg, Morten Grauballe, Richard Kinder and/or Roger Wilson. 13. All documents concerning or relating to Google's knowledge of the `552 Patent

and/or Red Bend's claim to have patent protection over its products or technology. 14. All documents concerning or relating to Google's oral and/or written

communications and/or meetings with Red Bend prior to September 2009, including but not limited to Red Bend's meeting with Google's Eric Chu and Angana Ghosh on August 28, 2008 and any other meeting between Red Bend and any member of Google's Android team. 15. All documents concerning or relating to Google's actual or potential use of Delta

Update techniques, including but not limited to Courgette, to update Android or any other software or firmware installed on a mobile device running Android, including but not limited to software or firmware supplied or developed by Adobe Systems Incorporated for use with Android. 16. 17. All documents concerning or relating to the `552 Patent. All documents concerning or relating to Courgette's success or advantages,

including but not limited to comments by Google or others regarding Courgette, and including but not limited to commercial benefits to Google resulting directly or indirectly from its use of Courgette. 18. All documents concerning or relating to Google's intention or plans to converge

or merge its Chrome and Android platforms and/or the possibility of such convergence or merging in the future. 19. All documents supporting, tending to rebut, or tending to refute any position, fact,

or argument Google relied upon in opposing Red Bend's preliminary injunction motion. -6-

20.

All documents concerning or relating to Google's research, development or

implementation of any Delta Update technique (including but not limited to Courgette). 21. All documents concerning or relating to Google's actual or potential use of any

Delta Update technique (including but not limited to Courgette). 22. All documents concerning or relating to Google's actual or potential use of any

technique for updating executable software. 23. All documents concerning or relating to Google's transmission or distribution of

updates generated by Courgette. 24. All documents concerning or relating to any Delta Update used by Google to

update software on mobile devices, including cell phones. 25. All documents, including but not limited to, official actions, responses, and

references cited during prosecution, concerning the preparation or prosecution of any United States patent applications relating to the technique(s) for updating Google's web browser, operating systems, or any Google product. 26. 27. 28. 29. All documents concerning or relating to U.S. Patent Appln. No. 12/383,616. All documents concerning or relating to this action. All correspondence between Google and Red Bend. All documents concerning or relating to Google's investigation of Red Bend or

the `552 Patent. 30. All documents concerning or relating to Google's first knowledge of Red Bend or

the `552 Patent. 31. All correspondence between Google and any Third Party regarding Red Bend or

the `552 Patent. 32. All documents concerning or relating to Google's efforts to influence or persuade

Third Parties, including but not limited to Adobe Systems Inc., not to use Red Bend's products, services or technology. 33. All documents which Google contends are prior art to the `552 Patent. -7-

34.

All documents which support, refute or otherwise relate to any claim or defense in

this action, including but not limited to any defense by Google that it has not infringed, induced infringement of, or contributed to infringement of the `552 Patent, or that Google is not infringing, inducing infringement of, or contributing to infringement of the `552 Patent. 35. All documents which support, refute or otherwise relate to any claim or defense of

Google that any infringement of the `552 Patent was not or is not willful. 36. All documents which support, refute or otherwise relate to any claim or defense of

Google that any claim of the `552 Patent is invalid. 37. All documents reflecting, concerning or relating to any investigation, report,

opinion, study, or analysis, whether formal or informal, relating to the infringement or validity of the `552 Patent. 38. 39. All documents concerning or relating to the scope of any claim in the `552 Patent. All documents concerning or relating to the meaning of any term, phrase,

limitation, or element in any claim in the `552 Patent 40. All documents concerning or relating to the level of ordinary skill in the art of the

subject matter of the `552 Patent. 41. All documents concerning or relating to any patent search or study which Google

has conducted with respect to the subject matter of the `552 Patent. 42. All documents, including but not limited to patents, which Google considered or

reviewed prior to its decision to use Courgette or make the Courgette source code available in open source. 43. All documents concerning or relating to past failures of Google or any Third Party

to achieve the results achieved by Google's Courgette. 44. All documents concerning or relating to the commercial success of Google's

Chrome web browser. 45. All documents concerning or relating to Google's decision to make, use, supply,

or otherwise distribute the Chrome web browser. -8-

46.

All documents concerning or relating to any value or benefit to Google, whether

direct or indirect, attributable to its use, supply or distribution of the Chrome web browser and/or the Chrome OS. 47. All documents and things that Google may rely upon to establish that any

secondary indicia of nonobviousness do not apply to the `552 Patent. 48. `552 Patent. 49. Documents sufficient to show the total number of times Courgette has been used All documents concerning or relating to Google's efforts to design around the

to update the Chrome web browser on users' computers. 50. All documents concerning or relating to Google's projections for the future use of

Courgette, including but not limited to, the total number of times Google expects Courgette to be used to update the Chrome web browser on Internet users' computers in the future. 51. All documents concerning the calculation of damages in the present action,

including the amount of a reasonable royalty and the method of calculation of a royalty base. 52. All documents concerning Google's software and/or patent licensing practices,

including licenses that Google has entered into, offers of license made and/or received by Google, and negotiations for such licenses (not including off-the-shelf licenses). 53. All documents concerning advertisements and promotional materials used by

Google to promote Courgette in connection with the Chrome web browser or with any other product that uses a Delta Update. 54. All business plans or reports, market analyses, marketing plans, sales plans,

operating plans, sales or market projections, or similar documents prepared by Google or anyone acting on its behalf, including consultants, referring or relating to the Chrome web browser or Google's Chrome operating system(s) that use, or will potentially use, Delta Updates. 55. All licenses and/or other contracts or agreements entered into by Google

concerning or relating to updating computer programs.

-9-

56.

All documents which refer to licenses or agreements between Google and any

Third Party concerning or relating to updating computer programs. 57. Documents sufficient to determine royalties paid or other amounts paid under any

assignments, licenses or other agreements (except off-the-shelf licenses) to which Google is a party, relating to computer programs, including but not limited to updating computer programs. 58. Documents sufficient to determine royalties paid or other amounts paid under any

patent licenses to which Google is a party, relating to computer programs, including but not limited to updating computer programs. 59. All documents showing Google's practices, methods and/or techniques for

valuing the technology of Third Party companies, including but not limited to its valuation practices, methods and techniques it has applied to the technology, products and/or services offered by Third Party companies. 60. Documents sufficient to determine actual and anticipated gross sales, net sales,

gross profit, operating profit and/or pretax profit related to Google products updated using a Delta Update technique, including Courgette. 61. All documents upon which Google's computation of damages are or will be

based, including all documents relating to or referring to the basis for Google's damage calculation and the basis for each estimate or assumption used as part of Google's damage calculation. 62. All documents concerning non-infringing alternatives to the Asserted Claims of

the `552 Patent. 63. Organizational charts of Google, including, without limitation, the Chrome team,

the Android team, and the ChromeOS team. 64. Documents sufficient to establish the organizational responsibilities of each

person at Google who has or had at any time any involvement in the research, development, marketing, decision to use, or decision to post in open source, any Delta Update technique, including but not limited to Courgette. - 10 -

65.

All documents produced to Google by any Third Party in response to a subpoena

or other formal or informal request for documents in connection with this action. 66. Documents sufficient to show Google's policies regarding the retention or

destruction of records or files. 67. All documents identified in any of Google's responses to Red Bend's

Interrogatories. 68. All documents supporting, refuting, or relied upon in creating Google's Answer

and Counterclaim. 69. All documents provided to an expert, consultant, or third-party by Google or its

attorneys in connection with this action. 70. All documents Google intends to use at trial.

Dated: April 29, 2010 By: /s/ Jennifer C. Tempesta Daniel Cloherty (BBO# 565772) Dwyer & Collora, LLP 600 Atlantic Avenue - 12th Floor Boston, MA 02210-2211 Telephone: [phone] Facsimile: [phone] Robert C. Scheinfeld (RS-2632) (Admitted PHV) Eliot D. Williams (EW-6560) (Admitted PHV) Jennifer C. Tempesta (JT-4841) (Admitted PHV) Baker Botts L.L.P. 30 Rockefeller Plaza 44th Floor New York, New York 10012-4498 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiffs Red Bend Ltd. and Red Bend Software Inc.

- 11 -

CERTIFICATE OF SERVICE I hereby certify that on April 29, 2010, I served the copy of the foregoing document via regular mail and electronic mail to the following counsel for Defendant: Susan Baker Manning ([e-mail]) Bingham McCutchen LLP 2020 K Street NW Washington, DC 20006-1806 Robert C. Bertin ([e-mail]) Bingham McCutchen LLP 2020 K Street NW Washington, DC 20006-1806 William F. Abrams ([e-mail]) Bingham McCutchen LLP 1900 University Avenue East Palo Alto, California 94303-2223

/s/ Jennifer C. Tempesta

- 12 -