Function Media, L.L.C. v. Google, Inc. et al

Filing 153

Second MOTION to Expedite Motion to Compel by Function Media, L.L.C.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Text of Proposed Order)(Nelson, Justin)

EXHIBIT

7

Melanie Baker

From: Sent: To: Subject:

[e-mail] Wednesday, February 11,2009 2:26 PM [e-mail] Activity in Case 2:06-cv-00367-DF PalTalk Holdings, lnc. v. Microsoft Corporation Order on Sealed Motion

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U.S. District Court

[LM]

Eastern District of TEXAS

Notice of Electronic Filing
The following transaction was entered on2lll/2009 at2:26 PM CST and filed on2/1l12009 PalTalk Holdings, [nc. v. Microsoft Corporation Case 2:06-cv-367 Case

Name: Number:

Filer: Document Number:203
Docket Text: ORDER grant¡ng in part and deny¡ng ¡n part [163] Motion to compel, deadlines set forth herein.

Signed by Magistrate Judge Charles Everingham on
2:06-cv-367 Notice has been electronically mailed to:

2111109.

(ehs,

)

Louis Brucculeri [e-mail], scabello@,counselip.com, [e-mail] Robert Christopher Bunt [e-mail], dattawal¡@pbatyler. com
Sidney Calvin Capshaw, III [e-mail], [e-mail], [e-mail], ederieux@.capshawlaw.com, jrambin@capshawlaw.c , [e-mail], [e-mail], [e-mail], [e-mail], [e-mail]

Otis W Carroll, Jr [e-mail], [e-mail] Elizabeth L DeRieux [e-mail], [e-mail], [e-mail], chenry@.capshawlaw.com, irambin@capshawlaw. , [e-mail], [e-mail], mbaker@,capshawlaw.com, rhurse@.capshawlaw.com, [e-mail] Harry Lee Gillam, Jr gil@gillamsmithlaw. com, i anet@.gillamsmithlaw. com

Franklin Jones, Jr [e-mail]
G William Lavender [e-mail], [e-mail], tamm)'@.lavenderlaw.com

Robert M Parker [e-mail]

David T Pritikin [e-mail], [e-mail], [e-mail]
Thomas D Rein [e-mail], [e-mail], [e-mail]

Virgil Bryan Medlock, Jr [e-mail], [e-mail]
Deborah J Race drace@ icklaw. com, feds erv@.ickl aw. com Thomas John Ward, Jr iw@j¡ryflrrno-com, ak@jwfirm. com, wbc@jwfirm. com

Melissa Richards Smith [e-mail], [e-mail] Max Lalon Tribble, Jr [e-mail],

@

Charles Ainsworth charle]¡@.pbat]¡ler. com, þennyc@pbatyler. com

Andrew Thompson Gorham tgorham@pbatyler. com
Catherine Isabelle Casey Rajwani crajwani@.sidley.com, jburis@s¡dlgyeg¡q, tngu)¡[e-mail], ttarnay@.sidley.com

[e-mail],jwest@susmangodft lbass@susmangodfrey. conl sschulze@susmangodfrey. com
Michael F Heim [e-mail], abranum@,hpcllp.com, [e-mail]

,

Richard A Cederoth rcederoth@sidle)¡.com, [e-mail], [e-mail], [e-mail], [e-mail], curtis.hill@sidlel¡.com, [e-mail], [e-mail], lschoenrock@sidley. com, @, sjerez@sidley. com, tchandler@,sidl ey. com

Micah John Howe, I [e-mail] David Charles Marcus dmarcus@susmangodfre]¡.com, [e-mail]
Kalpana Srinivasan ksrinivasan@susmangodfrey. com, hdaniels@susmangodfrey. com Douglas Ron Wilson dwilson@ hpcllp. com, nbaudoin@hpcllp. com
Laur a L Donoghue ldonoghue@sidl ey. co m, cdavern@.si dley. com Nabeel Khan nkhan@ sidley. com, bdipasqu @sidley. com Stacy Quan stacyq@microsoft .com
2

John W McBride i wmcbride@sidley. com, efilingnotice@sidley. com 2206-cv-367 Notice

will not be electronically mailed to:

The following document(s) are associated with this transaction:

Document description :Main Document Original filename:n/a Electronic document Stamp: I S TAMP dcecfStamp_ID: 1 04 1 5 4 5 8 1 8 lD atæ2 I I I / 2009] [Fil eNumb er:5 7 00 6 66-0

I

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Case 2:06-cv-00367-DF Document203

Filed 0211112009 Paqe 1 of 3

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS MARSHALL DIVISION PALTALK HOLDINGS, INC.
vs.
$ $ $

$
s

CASENO.2:06-CY-367-DF

MICROSOFT CORP.

ORDER Before the court is PalTalk Holdings, Inc.'s ("PalTalk") motion to compel (Dkt. No. 163). The court grants-in-part the motion to compel.

1.

Licensing Documents The parties dispute the defendant's obligation to produce licensing documents. In this

court's view, for discovery purposes, the scope ofrelevant licenses should reflect the technology

in dispute. The court frnds that the technology involved in this case is gaming and networks. As
such, the scope

of

discoverable licenses are those related to gaming, networks, or software

utilized in gaming and networks. Microsoft Corp.'s ("Microsoff') arguments that portfolio
andlor cross licenses are per se irrelevant

is unpersuasive. Likewise, the court rejects
assess

Microsoft's suggestion thatit would be unduly burdensome to

which licenses relate to a

particular technology. After considering the arguments, the court orders the following relief. The court orders Microsoft to produce any and all patent licensing documents, excluding
settlement agreements, that relate to the following: (1) gaming or networking technology; or (2) software utilized in gaming or networking technology.

Furthermore, Microsoft is precluded from having its experts offer the opinion that the

plaintiffls proposed royalty or damages calculations are multiple times larger than what
Microsoft has ever paid for software licenses in the past. Microsoft has resisted producing all of

Case 2:06-cv-00367-DF Document203

Filed 0211112009 Page 2 of 3

its licenses and settlement agreements, and the plaintiff has no way to challenge this assertion.

Microsoft is ordered to produce its licensing documents within seven calendar days from the
hearing held on February 9,2009.

2.

Online Use
The parties also dispute the extent of Microsoft's obligation to produce its data reflecting

online gaming. Microsoft contends

it

has already produced accurate information. After

considering the arguments, the court orders the following relief.

The court orders Microsoft to produce the following information to the extent

it

exists:

(l) total number of unique users that have played

on Xbox Live in online multiplayer mode; (2)

total number of unique users that have played on Xbox Live in online multiplayer mode
involving four or more consoles; (3) total number of hours spent playing on Xbox Live in online

multiplayer mode; and (4) total number

of hours spent playing on Xbox Live in

online

multiplayer mode involving four or more consoles.

Microsoft is ordered to produce the user data even if it does not directly track the number

of consoles; to the extent the number of consoles in use may be derived inferentially from
Microsoft's use data, then Microsoft is ordered to produce such information. Microsoft is
ordered to produce user data within seven calendar days from the hearing held on February 9,

2009.

There

is, however, some question as to the reliability of the online user data.

Accordingly, the court also orders Microsoft to produce a 30(b)(6) witness to explain the
produced data set and any reliability issues related to such data. Microsoft is ordered to produce

its 30(b)(6) witness within ten calendar days from the hearing held on February 9,2009. The
deposition is limited to 3.5 hours absent further order of the court.

Case 2:06-cv-00367-DF Document

203

Ftled 0211112009 Page 3 of 3

SIGNED this l lth day of February,2009.

CHARLES EVERIN UNITED STATES MAG