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

Filing 91

RESPONSE in Opposition re 83 MOTION to Compel DISCOVERY INTO NON-ACCUSED TECHNOLOGY filed by Yahoo!, Inc.. (Attachments: # 1 Declaration of M. Lane ISO Opposition to MTC, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18)(Lane, Michael)

Exhibit 11

susman godfrey
S U I T E 5100 9 0 1 MAIN STREET
[phone] FAX [phone]
www.susmangodfrey.com

l.l.p.

a registered limited liability partnership

D A L L A S , TEXAS 7 5 2 0 2 - 3 7 7 5

__________
Suite 5100 1000 Louisiana Street Houston, Texas 77002-5096 [phone] __________ Suite 950 1901 Avenue of the Stars Los Angeles, California 90067-6029 [phone] __________ Suite 3800 1201 Third Avenue Seattle, Washington 98101-3000 [phone] __________ 5th Floor 654 Madison Avenue New York, New York 10065-8440 [phone] __________

Jeremy J. Brandon Direct Dial [phone]

Direct Dial Fax [phone] E-Mail [e-mail]

December 30, 2008 Via E-mail Re: Function Media LLC v. Google Inc. and Yahoo!, Inc. No. 2-07-CV-279 (E.D. Tex.)

Dear Doug: This letter responds to your letter dated December 17, 2008. Let's discuss at your earliest convenience. Interrogatory No. 1: In addition to identifying any departments that track or analyze competitor activities (including patent applications), please identify any employee (regardless of department) whose job description or day-to-day routine includes this sort of thing. Please also supplement Yahoo!'s response with information regarding Yahoo!'s document-collection efforts, if any, from these departments and employees. Interrogatory No. 2: Please advise regarding the status of the Brock search. Please also search the files of any associates, assistants, and secretaries that Mr. Brock may have worked with. Funct ion Media does not understand how Yahoo! could have failed to recognize Mr. Brock as a former employee when a simple Internet search reveals that he was. Interrogatory No. 3: Function Media will limit this interrogatory to any communications with the identified Prior Art that occurred after the filing of the Complaint. Function Media will further limit this interrogatory to Yahoo! employees or Yahoo! attorneys who knew about and/or were working on the Function Media lawsuit.

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I disagree with your assertion that Function Media is seeking irrelevant information in an attempt to stifle communications between Yahoo!'s attorneys and third parties. As I explained on our call, the information sought by this Interrogatory is relevant, discoverable, and perfectly legitimate. The compromise you suggested is okay as a starting point for discussions involving Yahoo! attorneys, but Function Media reserves its rights. The substance of the communication is not privileged or work product, and I disagree with your assertion that any substantive description of the discussions would almost inevitability contain mental impressions of any participating attorneys. In addition to the table, please produce any documents that were communicated to or from the Prior Art. And please describe in detail any post-lawsuit discussion with the identified Prior Art by non-attorney employees with knowledge of the Function Media litigation. Funct ion Media will be happy to answer a similar interrogatory. Interrogatory No. 4: This interrogatory seeks information that is plainly relevant and discoverable. If Yahoo! is going to rely on its document production as a response, it must identify the responsive documents by Bates number. Otherwise, Yahoo! has not sufficiently responded to this interrogatory. Please supplement Yahoo!'s response and confirm that Yahoo! has conducted a reasonable search for this information. Interrogatory No. 5: Please identify, per the interrogatory, all "revenues [that] were not derived from Accused Products that had been manufactured, used, imported into, offered for sale, or sold in the United States." In other words, please ensure that any purported "non-U.S." revenues that Yahoo! identifies fit the above description. And please state the basis for any such contention. Interrogatory No. 6: I disagree with your assertion that the licenses are necessarily inadmissible. In any event, they are discoverable regardless of admissibility. Please produce these licenses and confirm that Yahoo! is not a party to any addit ional license agreements that "relate[] to any feature of the Accused Products." Interrogatory No. 7: What is your timetable with respect to the identification of related patents and patent applications (published and non-published)? This interrogatory is months-old by now and Function Media believes that a response is due now--indeed, past due. Please promptly supplement.

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Interrogatory No. 9: On December 17, Yahoo! "responded" to recently-served Interrogatory No. 9. Here was Yahoo!'s complete answer: In addition to its General Objections, Yahoo! objects to this interrogatory to the extent it calls for information that is subject to the attorney-client privilege and/or work product immunity. Yahoo! further objects to this interrogatory as vague. Moreover, Yahoo! objects to this interrogatory as overbroad and unduly burdensome. Yahoo! further objects to this interrogatory to the extent it is not reasonably calculated to lead to the discovery of admissible evidence, particularly to the extent that it requests information regarding products, systems, technologies, functionalities, and services not specifically disclosed in Function Media's First Amended P.R. 3-1 Disclosures of Asserted Claims and Infringement Contentions. Further, Yahoo! objects to this interrogatory on the ground that it seeks information that is otherwise available from another source that is more convenient, less burdensome or less expensive, including documents produced by Yahoo! in response to Function Media's document requests. This non-response, we believe, will be completely unacceptable in the Eastern District. Please answer the Interrogatory. I look forward to hearing from you. Best regards,

Jeremy J. Brandon

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