Gordon v. DreamWorks Animation SKG, Inc. et al

Filing 49

AFFIDAVIT of Kristen McCallion (REVISED) in Opposition re 36 MOTION to Dismiss For Failure to Appear at Deposition filed by Jayme Gordon. (McCallion, Kristen)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

JAYME GORDON,
Plaintiff,

v.
C.A. No. 1:11-cv-10255-JLT
DREAMWORKS ANIMATION SKG, INC.,
DREAMWORKS ANIMATION LLC, and
PARAMOUNT PICTURES, CORP.,
Defendants.

REVISED DECLARATION
I, Kristen McCallion, declare as follows:
1. I am an attorney at Fish & Richardson P.C., counsel of record for Plaintiff, Jayme
Gordon, in this action. I am a member of the Bar of the State of New. I have personal
knowledge of the matters stated in this declaration and would testify truthfully to
them if called upon to do so.
2. Attached as Exhibit A is a true and correct copy of an excerpt of the docket from
Broadcom v. Emulex, Case No. CV 09-1058-JVS, in the Central District of
California, before the Honorable James Selna.
3. Attached as Exhibit B is a true and correct copy of a letter from Fish &Richardson to
Foley Hoag, LLP dated August 30, 2011.
4. Attached as Exhibit C is a true and correct copy of a letter from Fish & Richardson to
Loeb & Loeb, LLP dated October 6, 2011.

5. Attached as Exhibit D is a true and correct copy of a letter from Fish & Richardson to
Loeb & Loeb, LLP dated September 1, 2011.
6. The electronic files produced by Mr. Gordon are located at Bates JG 001691 –
001693. JG001691 contains 1,314 files, JG001692 contains 1,940 files, and
JG001693 contain 1,893 files. Together, they total 5,147 files.
7. Attached as Exhibit E are true and correct copies of two news articles dated
September 15, 1993 and December 1, 1995.

I declare under penalty of perjury under the laws of the United States of America that the
foregoing is true and correct.

Executed at New York, New York, this 3rd day of November, 2011.

s/ Kristen McCallion

2

EXHIBIT A

CM/ECF - California Central District

Page 1 of 105

(ANx), AO120, DISCOVERY

UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
(Southern Division - Santa Ana)
CIVIL DOCKET FOR CASE #: 8:09-cv-01058-JVS -AN
Broadcom Corporation v. Emulex Corporation
Assigned to: Judge James V. Selna
Referred to: Magistrate Judge Arthur Nakazato
Related Case: 2:10-cv-03963-JVS-AN
Cause: 28:1331(a) Fed. Question: Real Property

Date Filed: 09/14/2009
Jury Demand: Both
Nature of Suit: 830 Patent
Jurisdiction: Federal Question

Plaintiff
Broadcom Corporation

represented by Andrew Benjamin Grossman
Wilmer Cutler Pickering Hale & Dorr
LLP
350 South Grand Avenue Suite 2100
Los Angeles, CA 90071
213-443-5300
Fax: [phone]
Email:
[e-mail]
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Dominic E Massa
Wilmer Cutler Pickering Hale & Dorr
LLP
60 State Street
Boston, MA 02109
617-526-6000
Fax: [phone]
Email:
[e-mail]
LEAD ATTORNEY
PRO HAC VICE
ATTORNEY TO BE NOTICED
Gregory Teran
Wilmer Cutler Pickering Hale & Dorr
LLP
60 State Street
Boston, MA 02109
617-526-6574
Fax: [phone]
Email: [e-mail]
LEAD ATTORNEY

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202-783-5070
Fax: [phone]
Email: [e-mail]
PRO HAC VICE
ATTORNEY TO BE NOTICED
Juanita Rose Brooks
Fish & Richardson PC
12390 El Camino Real
San Diego, CA 92130
858-678-5070
Fax: [phone]
Email: [e-mail]
ATTORNEY TO BE NOTICED
Matthew P Harper
Thompson & Knight LLP
1722 Routh Street Suite 1500
Dallas, TX 75201
214-969-1276
Fax: [phone]
Email: [e-mail]
PRO HAC VICE
ATTORNEY TO BE NOTICED
Michael E Schonberg
Thompson & Knight LLP
1722 Routh Street Suite 1500
Dallas, TX 75201
214-969-1304
Fax: [phone]
Email: [e-mail]
PRO HAC VICE
ATTORNEY TO BE NOTICED
Michael B Smith
Gibson Dunn and Crutcher
1881 Page Mill Road
Palo Alto, CA 94304
650-849-5300
Email: [e-mail]
TERMINATED: 07/01/2011
Richard Michael Koehl
Gibson Dunn & Crutcher LLP
200 Park Avenue Floor 47
New York, NY 10166
212-351-2636
Fax: [phone]
Email: [e-mail]

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of $275 receipt number 0973-8104284 paid.) filed by Defendant Emulex
Corporation. (Attachments: # 1 Proposed Order)(Segal, David) (Entered:
01/24/2011)
01/25/2011

268

ORDER by Judge James V. Selna: granting 267 Application to Appear Pro
Hac Vice by Attorney Carl E. Bruce on behalf of Emulex Corporation,
designating David A. Segal as local counsel. (lt) (Entered: 01/26/2011)

01/31/2011

269

First NOTICE of Appearance filed by attorney Juanita Rose Brooks on behalf
of Defendant Emulex Corporation (Brooks, Juanita) (Entered: 01/31/2011)

02/04/2011

270

NOTICE of Manual Filing filed by Plaintiff Broadcom Corporation of Motion
to Amend Infringement Contentions and Related Documents. (Liss, Jason)
(Entered: 02/04/2011)

02/04/2011

271

Proof of Service filed by Plaintiff Broadcom Corporation (Liss, Jason)
(Entered: 02/04/2011)

02/04/2011

272

NOTICE OF MOTION AND MOTION to Amend Infringement Contentions
filed by Plaintiff Broadcom Corporation. Motion set for hearing on 3/7/2011
at 01:30 PM before Judge James V. Selna. (Attachments: # 1 Proposed Order)
(Liss, Jason) (Entered: 02/04/2011)

02/04/2011

273

NOTICE OF MOTION AND MOTION for Leave to Supplement Invalidity
Contentions filed by Defendant Emulex Corporation. Motion set for hearing
on 3/7/2011 at 01:30 PM before Judge James V. Selna. (Attachments: # 1
Proposed Order)(Barkan, David) (Entered: 02/04/2011)

02/04/2011

274

DISCLOSURE of Invalidity Contentions (Public Redacted Version) filed by
Defendant Emulex Corporation (Attachments: # 1 Exhibit A, # 2 Exhibit B, #
3 Exhibit C, # 4 Exhibit C11-Part 1 (REDACTED), # 5 Exhibit C11-Part 2
(REDACTED), # 6 Exhibit C11-Part 3 (REDACTED), # 7 Exhibit C11-Part
4 (REDACTED), # 8 Exhibit C12-Part 1 (REDACTED), # 9 Exhibit C12Part 2 (REDACTED), # 10 Exhibit C12-Part 3 (REDACTED), # 11 Exhibit
D, # 12 Exhibit D21, # 13 Exhibit E (REDACTED), # 14 Exhibit F, # 15
Exhibit G, # 16 Exhibit G21)(Barkan, David) (Entered: 02/04/2011)

02/04/2011

275

PROOF OF SERVICE OF SERVICE filed by Defendant Emulex
Corporation, of Confidential Invalidity Contentions & Exhibits served on
4/4/2011. (Barkan, David) (Entered: 02/04/2011)

02/07/2011

276

NOTICE of Manual Filing filed by Defendant Emulex Corporation of
Emulex's Confidential Disclosure of Invalidity Contentions and Confidential
Exhibits C11, C12, and E to the Same. (Barkan, David) (Entered: 02/07/2011)

02/08/2011

277

NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents
RE: Miscellaneous Document 271 . The following error(s) was found:
Incorrect event selected. The correct event is: Proof of Service (Subsequent
Documents). In response to this notice the court may order (1) an amended or
correct document to be filed (2) the document stricken or (3) take other action
as the court deems appropriate. You need not take any action in response to
this notice unless and until the court directs you to do so. (wr) (Entered:
02/08/2011)

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09/20/2011

800

PROPOSED JURY VERDICT filed by plaintiff Broadcom Corporation,
Emulex Corporation. (Jay, Michael) (Entered: 09/20/2011)

09/20/2011

811

MINUTES OF Jury Trial - 1st day Day held before Judge James V. Selna:
Jury impaneled and sworn. The Court and counsel confer. Counsel for
plaintiff informs the Court that they are dropping claim 64 in this matter and
will file documents for the record. Jury Trial set for 9/21/2011 08:00 AM
before Judge James V. Selna.Court Reporter: Sharon Seffens. (twdb)
(Entered: 09/26/2011)

09/21/2011

801

TRANSCRIPT for proceedings held on 9/20/2011. Court Reporter/Electronic
Court Recorder: Sharon Seffens, phone number 714-543-0870. Transcript
may be viewed at the court public terminal or purchased through the Court
Reporter/Electronic Court Recorder before the deadline for Release of
Transcript Restriction. After that date it may be obtained through PACER.
Notice of Intent to Redact due within 7 days of this date. Redaction Request
due 10/12/2011. Redacted Transcript Deadline set for 10/22/2011. Release of
Transcript Restriction set for 12/20/2011. (dg) (Entered: 09/21/2011)

09/21/2011

802

NOTICE OF FILING TRANSCRIPT filed for proceedings 9/20/2011 (dg)
(Entered: 09/21/2011)

09/21/2011

803

NOTICE OF LODGING filed (Samueli deposition transcript lodged) re
Pretrial Conference Order - Final 788 (Barkan, David) (Entered: 09/21/2011)

09/21/2011

812

ORDER by Judge James V. Selna: granting 787 Application to Appear Pro
Hac Vice by Attorney Jaime Bulnes on behalf of Defendant Emulex
Corporation, designating Stanley M. Gibson as local counsel. (lt) (Entered:
09/26/2011)

09/21/2011

813

MINUTES OF Jury Trial - 2nd day Day held before Judge James V. Selna:
Opening statements made. Witnesses called, sworn and testified. Exhibits
identified and admitted. The Court gives the jury preliminary instructions.
Jury Trial set for 9/22/2011 08:00 AM before Judge James V. Selna.Court
Reporter: Denise Paddock. (twdb) (Entered: 09/26/2011)

09/22/2011

804

TRANSCRIPT for proceedings held on 9/21/2011. Court Reporter/Electronic
Court Recorder: Denise Paddock, at [e-mail]. Transcript
may be viewed at the court public terminal or purchased through the Court
Reporter/Electronic Court Recorder before the deadline for Release of
Transcript Restriction. After that date it may be obtained through PACER.
Notice of Intent to Redact due within 7 days of this date. Redaction Request
due 10/13/2011. Redacted Transcript Deadline set for 10/23/2011. Release of
Transcript Restriction set for 12/21/2011. (dg) (Entered: 09/22/2011)

09/22/2011

805

NOTICE OF FILING TRANSCRIPT filed for proceedings 9/21/2011 (dg)
(Entered: 09/22/2011)

09/22/2011

807

TRANSCRIPT for proceedings held on 9/22/2011. Court Reporter/Electronic
Court Recorder: Sharon Seffens, phone number 714-543-0870. Transcript
may be viewed at the court public terminal or purchased through the Court
Reporter/Electronic Court Recorder before the deadline for Release of
Transcript Restriction. After that date it may be obtained through PACER.

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Transcript Restriction set for 1/9/2012. (dg) (Entered: 10/11/2011)
10/11/2011

874

NOTICE OF FILING TRANSCRIPT filed for proceedings 10/6/2011 (dg)
(Entered: 10/11/2011)

10/11/2011

875

TRANSCRIPT for proceedings held on 10/7/2011 Jury Notes 2, 3, 4. Court
Reporter/Electronic Court Recorder: Sharon Seffens, phone number 714-5430870. Transcript may be viewed at the court public terminal or purchased
through the Court Reporter/Electronic Court Recorder before the deadline for
Release of Transcript Restriction. After that date it may be obtained through
PACER. Notice of Intent to Redact due within 7 days of this date. Redaction
Request due 11/1/2011. Redacted Transcript Deadline set for 11/11/2011.
Release of Transcript Restriction set for 1/9/2012. (dg) (Entered: 10/11/2011)

10/11/2011

876

NOTICE OF FILING TRANSCRIPT filed for proceedings 10/7/2011 Jury
Notes 2, 3, 4 (dg) (Entered: 10/11/2011)

10/11/2011

884

MINUTES OF Jury Trial - 13th Day held before Judge James V. Selna. The
Court Reporter reads back the testimony of witness Warden. The Court and
counsel confer regarding jury. The Court gives further instructions to the jury.
Jury Trial continued 10/12/2011 08:00 AM before Judge James V.
Selna.Court Reporter: Sharon Seffens. (db) (Entered: 10/18/2011)

10/12/2011

880

TRANSCRIPT for proceedings held on 10/11/2011, Jury Note 6. Court
Reporter/Electronic Court Recorder: Sharon Seffens, phone number 714-5430870. Transcript may be viewed at the court public terminal or purchased
through the Court Reporter/Electronic Court Recorder before the deadline for
Release of Transcript Restriction. After that date it may be obtained through
PACER. Notice of Intent to Redact due within 7 days of this date. Redaction
Request due 11/2/2011. Redacted Transcript Deadline set for 11/12/2011.
Release of Transcript Restriction set for 1/10/2012. (dg) (Entered:
10/12/2011)

10/12/2011

881

NOTICE OF FILING TRANSCRIPT filed for proceedings 10/11/2011 (dg)
(Entered: 10/12/2011)

10/12/2011

886

MINUTES OF Jury Trial - 14th Day held and completed before Judge James
V. Selna: Verdict reached. Jury FINDS: in favor of plaintiff in part. Jury
polled. Other: The Court and counsel confer regarding jury notes. The Court
declares a mistrial as to the portions of the verdict that the jury was unable to
reach a verdict on. Counsel shall contact the clerk, within the next week, to
arrange a telephone conference to discuss scheduling of this matter in the
future. Court Reporter: Sharon Seffens. (rla) (Entered: 10/18/2011)

10/12/2011

887

LIST OF WITNESSES at trial. (twdb) (Entered: 10/20/2011)

10/12/2011

888

JURY INSTRUCTIONS. (twdb) (Entered: 10/20/2011)

10/12/2011

889

REDACTED Jury Notes # 6 filed. (twdb) Modified on 10/21/2011 (twdb).
(Entered: 10/20/2011)

10/12/2011

890

REDACTED Jury Notes # 6a filed. (twdb) Modified on 10/21/2011 (twdb).
(Entered: 10/20/2011)

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Plaintiff and Counterclaim Defendant Broadcom Corporation. (nbo) (Entered:
10/28/2011)
10/25/2011

941

PROOF OF SERVICE filed by plaintiff Broadcom Corporation, re
APPLICATION to Seal 939 , Order on Application to Seal (document) 940
served on 10/24/11. (twdb) (Entered: 10/28/2011)

10/25/2011

942

SEALED DOCUMENT JOINT STATUS REPORT in advance of telephone
scheduling conference (twdb) (Entered: 10/28/2011)

10/26/2011

936

JOINT STATUS REPORT (Public Redacted Version) filed by Plaintiff
Broadcom Corporation (Liss, Jason) (Entered: 10/26/2011)

10/27/2011

937

Final Trial Exhibit List filed by Plaintiff Broadcom Corporation.. (Liss,
Jason) (Entered: 10/27/2011)

PACER Service Center
Transaction Receipt
11/02/2011 12:41:47
PACER
Login:

fr0364

30005/0001LL1/Gamcase

Docket
Report

Client
Code:
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Criteria:

Description:
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Pages:

30

Cost:

2.40

8:09-cv-01058-JVS -AN End
date: 11/2/2011

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EXHIBIT B

Fish & Richardson p.c.
VIA ELECTRONIC MAIL
Frederick P. Fish
1855-1930
W.K. Richardson
1859-1951

601 Lexington Avenue,
52nd Floor
New York, New York
10022

August 30, 2011

Telephone
212 765-5070

John A. Shope, Esq.
Foley Hoag LLP
Seaport West
155 Seaport Boulevard
Boston, MA 02110-2600

Facsimile
212 258-2291

Re:

Web Site
www.fr.com

Jayme Gordon v. DreamWorks Animation SKG, Inc., et al.,
USDC, D. Mass. C.A. No. 1:11-cv-10255-JLT

Dear John,

~
at lan ta
aus ti n
bos t on
da lla s
de l aw are

This letter responds to your letter dated August 18, 2011.
First, Mr. Gordon maintains three active e-mail accounts, namely
[e-mail], [e-mail], and [e-mail]. We
have reviewed these accounts and confirm that there are no e-mails in these accounts
that are relevant to this litigation with the exception of privileged communications
between Mr. Gordon and his counsel. We expect that the parties will agree on a time
to exchange privilege logs during the course of this litigation.

ho us t on
mun ic h
ne w y ork
sil ic on va lle y
so ut he r n c al i f orn ia
tw in c it ie s
was hi n gt o n, d c

Second, you asked specifically about any documents regarding Mr. Gordon’s
knowledge of the “Kung Fu Panda” film before its release and whether any electronic
records evidencing such knowledge might exist. After further investigation, we can
confirm that all documents relating to Mr. Gordon’s knowledge of the “Kung Fu
Panda” film have been produced and that Mr. Gordon does not have any additional
documentation relevant to this inquiry, electronic or otherwise. It is our present
understanding that Mr. Gordon viewed a trailer for the “Kung Fu Panda” film before
filing his 2008 copyright registration. Mr. Gordon used a computer in 2008 to
prepare his 2008 copyright filing. That computer later stopped functioning and was
discarded. To the best of his recollection, Mr. Gordon did not save these files.
Very truly yours,
s/Kristen McCallion
cc:
Julia Huston, Esq. (by email)
David A. Kluft, Esq. (by email)
Jonathan Zavin, Esq. (by email)
David Grossman, Esq. (by email)
Mark A. Fischer, Esq. (by email)

EXHIBIT C

Fish & Richardson p.c.
Frederick P. Fish
1855-1930
W.K. Richardson
1859-1951

VIA ELECTRONIC MAIL
October 6, 2011
David Grossman, Esq.
Loeb & Loeb LLP
10100 Santa Monica Blvd.
Suite 2200
Los Angeles, CA 90067
Re:

601 Lexington Avenue,
52nd Floor
New York, New York
10022
Telephone
212 765-5070
Facsimile
212 258-2291
Web Site
www.fr.com

Jayme Gordon v. DreamWorks Animation SKG, Inc., et al.,
USDC, D. Mass. C.A. No. 1:11-cv-10255-JLT

Dear David:

~

This letter responds to your letter dated September 29, 2011.

a tlan ta
au s tin
b o s ton
da llas
de la war e
h ou s ton
m un ich
n e w yor k
s i lico n va lle y
s ou thern ca li forn ia
twi n c i ti e s
wa sh in gton , dc

As we previously advised you in our letter dated September 1, 2011, responsive
documents in the possession of Mr. Partello were produced in accordance with the
Court’s automatic disclosure requirement. For example, copies of relevant drawings
were produced, Mr. Partello’s signed statement was produced, the assignment
agreement was produced, and an agreement that was superseded by the
aforementioned assignment agreement was later produced. Further, Mr. Kluft
inspected the original drawings of the deposit copies submitted in connection with
Mr. Gordon’s copyright registration that identifies Mr. Partello. Based on our present
knowledge, it is our understanding that there are no relevant documents in the
possession of either Mr. Partello or Ms. Gordon that have not already been produced.
However, we will again ask Mr. Partello and Ms. Gordon to confirm that they have
searched all relevant files, including electronic files, and that all relevant documents
within their possession have been produced. To the extent any such documents exist,
we will produce them.
Regarding JG 1651-1658, the personal telephone numbers of the signatories were
redacted. These are irrelevant and constitute personal information of individuals not
parties to this case. Unredacted copies of these statements will not be produced.
As we advised you during our September 9 telephonic meet and confer, based on our
present knowledge, it is our understanding that Mr. Gordon has produced all
electronic images and files in his possession that are relevant to this case. Defendants’
understanding that Mr. Gordon has produced only the discs that were deposited with
the Copyright Office is incorrect. We refer you to JG 1692-1693, which identify
thousands of native files of Mr. Gordon’s prior website material.
Defendants’ current request for “any electronic images or files relating to any of the
characters that were included on Mr. Gordon’s website” is overbroad because it seeks
images and files relating to Mr. Gordon’s works that are not at issue in this case.
Please explain the basis for this request, and the relevancy of such images and files.

F i s h & R i c h a r d s o n p.c.
David Grossman, Esq.
October 6, 2011
Page 2

Lastly, while Mr. Madera noted that Mr. Gordon has computers, Mr. Madera also
noted that these computers were recently purchased by Mr. Gordon and do not
contain any files relevant to this litigation. For this reason, we do not understand the
basis for Defendants’ reiteration of their request for a forensic examination of Mr.
Gordon’s computers, and we do not intend to produce them for forensic examination.

Very truly yours,
s/ Kristen McCallion

cc:

Julia Huston, Esq. (by email)
David A. Kluft, Esq. (by email)
Jonathan Zavin, Esq. (by email)
John Shope, Esq. (by email)
Mark A. Fischer, Esq. (by email)

EXHIBIT D

Fish & Richardson p.c.
601 Lexington Avenue,
52nd Floor
New York, New York
10022
Frederick P. Fish
1855-1930
W.K. Richardson
1859-1951

Telephone
212 765-5070

VIA ELECTRONIC MAIL
September 1, 2011
David Grossman, Esq.
Loeb & Loeb LLP
10100 Santa Monica Blvd.
Suite 2200
Los Angeles, CA 90067
Re:

~
a tlan ta
au s tin

Facsimile
212 258-2291
Web Site
www.fr.com

Jayme Gordon v. DreamWorks Animation SKG, Inc., et al.,
USDC, D. Mass. C.A. No. 1:11-cv-10255-JLT

Dear David:
This letter responds to your letters of August 30 and August 31.

b o s ton
da llas
de la war e
h ou s ton
m un ich
n e w yor k
s i lico n va lle y
s ou thern ca li forn ia
twi n c i ti e s
wa sh in gton , dc

First, despite your repeated statements, Mr. Gordon has never “refused” to produce
relevant information. If you believe that to be the case, please identify the specific
circumstances surrounding this “refusal.”
We refer you to our letter dated August 30, 2011, addressed to John Shope, which
addresses your inquiries regarding Mr. Gordon’s computer and email usage. As we
explained to your colleagues, the only relevant electronic files in Mr. Gordon’s
possession are copies of files that were previously on Mr. Gordon’s websites, many
of which were deposited with the U.S. Copyright Office on a zip disc in connection
with Mr. Gordon’s 2000 copyright registration. All of these files have been produced
in their native form.
Your assumption that Mr. Gordon has not produced documents from his “files” is
wrong. Mr. Gordon is an individual; he is not a corporation with an administrative or
document filing staff. Your letter requests production of Jayme Gordon’s own files
relating to his Panda Power characters, the “Mighty 3,” the “Eden 5,” “Zito The
Super Samurai Mosquito,” the “Five Fists of Fury,” “Super Duck Super Duck” and
any characters or stories that existed in 1999. Mr. Gordon has already produced these
files, and while we continue to search for relevant documents in response to your
inquiries, we believe that Mr. Gordon’s production is substantially complete.
Your letter further requests production of original drawings, stories, sketches and
files. While Mr. Gordon’s prior production of electronic copies of these documents is
sufficient and in accordance with the Court’s automatic disclosure requirement, Mr.
Gordon will offer, for purposes of inspection, the original documents that are
currently in his possession. These original documents may be inspected at the offices
of Fish & Richardson in Boston. Original documents no longer in Mr. Gordon’s

F i s h & R i c h a r d s o n p.c.
David Grossman, Esq.
September 1, 2011
Page 2

possession, copies of which have been produced to Defendants, are on file with the
United States Copyright Office. Lastly, and as noted above, Mr. Gordon has already
produced thousands of files, in native format, of content that was placed online.
With respect to your request for documents relating to Mr. Partello’s work, those
have also been produced by Mr. Gordon in accordance with the Court’s automatic
disclosure requirement. For example, copies of relevant drawings were produced, and
an assignment agreement was produced. Mr. Gordon will produce an agreement that
was superseded by the aforementioned assignment agreement. Additionally, the
original drawings of the deposit copies submitted in connection with Mr. Gordon’s
copyright registration that identifies Mr. Partello may be inspected by Defendants at
the offices of Fish & Richardson in Boston.
Turning to your clients’ productions, we will review the Dreamworks’ financial
summaries and let you know if we believe they are sufficient. The Court has ordered
the immediate production of all relevant documents. If Dreamworks intends to rely
on documents to prove up any expenses, those documents must be produced now.
Mr. Gordon will object to the use of any later-produced documents.
We will also review the Paramount production, which we assume will also include
financial information, and identify any deficiencies as necessary.
We disagree with your statement that assertions of infringement and piracy of Kung
Fu Panda by Dreamworks are not relevant. Undoubtedly, and at the very least, the
legal departments of Defendants maintain files from which this information could
easily be collected. Please confirm that this information will be produced.
You did not respond to our inquiry regarding the collection and production of
information from the individuals identified on Defendants’ Rule 26.1(B) disclosures
as represented by Loeb & Loeb. Please confirm that you have conducted a proper
and thorough search for documents and things relevant to this litigation and that such
search included a search and review of all electronic media, including, for example,
the work and personal computers, portable discs and drives, and electronic mail
accounts of these individuals. If this proper search has not been conducted, then
please confirm that it will be conducted and provide a date when we can expect to
receive a supplemental production.
Finally, with respect to the form of electronic production, we discussed the form of
production during the meet and confer of counsel in June and indicated that we would
send a proposed format in a follow-up email, which Mr. Kane subsequently sent. We
received no objection. Indeed, Dreamworks’ first production was in the format
identified in Mr. Kane’s e-mail. Under Fed. R. Civ. P. 34(b)(1)(C), Gordon was

F i s h & R i c h a r d s o n p.c.
David Grossman, Esq.
September 1, 2011
Page 3

entitled to specify the format of the production. Please confirm that your clients will
produce all information in the specified format.

Very truly yours,
s/ Kristen McCallion

cc:

Julia Huston, Esq. (by email)
David A. Kluft, Esq. (by email)
Jonathan Zavin, Esq. (by email)
John Shope, Esq. (by email)
Mark A. Fischer, Esq. (by email)

EXHIBIT E