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 12
IN THE UNTED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION
FUCTION MEDIA LLC
Plaintiff,
vs.
§ § Civil Action No. 2007-CV-279 § §
GOOGLE INC. AN YAHOO!, INC.
Defendants.
§ § § § §
§ §
§ JURY TRIAL DEMANDED
YAHOO!, INC.'S FIRST SUPPLEMENTAL OBJECTIONS AND RESPONSES TO PLAINTIFF'S FIRST SET OF INTERROGATORIES
Pursuant to Federal Rules of Civil Procedure 26 and 33, Defendant and
Counterclaim Plaintiff Yahoo!, Inc. ("Yahoo!") hereby supplements its objections and responses
to Interrogatory Nos. 1, 3, 5 and 7 of Plaintiff's First Set of Interrogatories, served by Plaintiff
and Counterclaim Defendant Function Media, LLC ("Function Media"), as follows:
GENERAL OBJECTIONS
Yahoo! makes the following General Objections to Function Media's First Set of
Interrogatories, which apply to each interrogatory therein regardless of whether a General
Objection is specifically incorporated into the response.
1. Yahoo! objects to each interrogatory, definition, or instruction to the
extent it seeks or purports to impose obligations beyond or inconsistent with those imposed by
the Federal Rules of Civil Procedure, the applicable rules and orders of this Court, or any
stipulation or agreement of the paries in this action.
2. Yahoo! objects to Function Media's definition of "Accused Product" as
vague, overbroad and unduly burdensome, in par because the definition includes 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.
3. Yahoo! objects to Paragraph R of Function Media's "Definitions" because
it is overbroad, unduly burdensome, and seeks to compound and add subpars to each and every
interrogatory.
4. Yahoo! objects to each interrogatory, definition, or instruction to the
extent it seeks information that is confidential, proprietary, and/or trade secret information of a
third pary that is in Yahoo!'s possession subject to an obligation to a third pary. Yahoo! wil
provide such information only to the extent it can do so consistent with its obligations to any
third paries.
5. Yahoo! objects to each interrogatory, definition, or instruction to the
extent it seeks information not within the possession, custody, or control of Yahoo!. Yahoo! wil
only provide relevant, non-privileged information that is within Yahoo!'s present possession,
custody, or control and available to Yahoo! after a reasonable investigation.
6. Yahoo! objects to Function Media's definition of "Defendant," Yahoo,"
you," and "your" because they are overly broad. The definition includes persons and entities not
within Yahoo!'s control, and includes attorneys and/or their agents that have provided legal
advice to Yahoo!. Yahoo! wil respond to these interrogatories with non-privileged information
in its possession, custody or control to the extent such information can be obtained from a
reasonable search.
7. No objection or response made in this document shall be deemed to be an
admission by Yahoo! as to the existence or non-existence of responsive information or
documents, unless specifically so stated.
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8. By makng the accompanying responses and objections to the
interrogatories, Yahoo! does not waive, and hereby expressly reserves, its right to assert any and
all objections as to the admissibility of such döcuments or information into evidence in this
action, or in any other proceeding, on any and all grounds, including, but not limited to
competency, relevancy, materiality, and privilege.
9. Yahoo! objects to each interrogatory, definition, or instruction to the
extent that it calls for information that is subject to the attorney-client privilege and/or work
product immunity. Yahoo! does not intend to waive any applicable privilege or immunity by
these responses, and nothing herein shall be deemed to give rise to such a waiver.
SPECIFIC OBJECTIONS & RESPONSES
Subject to and without waiving its General Objections, Yahoo! further objects and
responds to Interrogatory Nos. 1, 3, 5 and 7 of Function Media's First Set of Interrogatories
(Nos. 1-8) as follows:
INTERROGATORIES
1:
INTERROGATORY
NO.
Identify any deparment, unit, or employee within Yahoo or one of its affiliates
that tracks, monitors, reviews, analyzes, or otherwise follows the developments, products,
technologies, patent applications, issued patents, or publications of Yahoo's competitors in the
advertising field, and-for each such deparment, unit, or employee-describe the search for
relevant documents that Yahoo performed in response to Function Media's document requests.
For purposes of this Interrogatory, "competitors" is specifically defined to include--in addition to
all other reasonable meanings--any patent holder or patent applicant.
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those sales revenues were not derived from Accused Products that had been manufactured, used,
imported into, offered for sale, or sold in the United States, and state the basis for such
contention.
RESPONSE TO INTERROGATORY NO.5:
In addition to its General Objections, Yahoo! objects to this interrogatory as
compound and containing subparts. Further, 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. Further, Yahoo! objects to this
interrogatory as premature, as its investigation is ongoing, discovery has just begun, and
Function Media (which has the burden of proof on damages) has not yet identified "sales" that it
alleges "should. . . be included as par of the royalty base." Yahoo! further objects to this
interrogatory to the extent it seeks information that is more readily obtained through other means
of discovery, such as document requests. Subject to and without waiving its objections, Yahoo!
responds as follows:
At a minimum, the royalty base in this litigation should not include revenues for
any products or services or features not specifically accused of infringement in Function Media's
First Amended P.R. 3-1 Disclosures of Asserted Claims and Infringement Contentions.
SUPPLEMENTAL RESPONSE TO INTERROGATORY NO.5:
Subject to its general objections and the specific objections set forth above,
Yahoo! supplements its response as follows:
Yahoo!'s Supplemental Response to Interrogatory No.9 discloses Yahoo!'s net
U.S. revenues, traffic acquisition costs, and gross U.S. revenues for the products Function Media
accused of infringement in its First Amended P.R. 3-1 Disclosures of Asserted Claims and
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Infringement Contentions. At a minimum, the royalty base in this litigation should not include
Yahoo!'s cost of revenues, including but not limited to Yahoo!'s traffic acquisition costs
("TAC") and other expenses. Further, the royalty base should not include revenues for any
products, services or features not specifically accused of infringement in Function Media's First
Amended P.R. 3-1 Disclosures of Asserted Claims and Infringement Contentions, nor should the
royalty base include revenues for accounts based outside the United States ("non-U.S.
revenues"). Yahoo! notes that its investigation and discovery is ongoing, and that Function
Media has not identified the revenues it believes should be included in a royalty base, and has
not provided an expert report on damages at this time. For these reasons, among others, the
revenues or costs listed in this Response may not be an exhaustive list and there may be
additional revenues or costs that should be excluded from a proper royalty base in this action.
Yahoo! reserves its rights to amend or supplement this response and to provide an expert report
which identifies other or additional revenues or costs that should be excluded from any royalty
base in this action.
INTERROGATORY NO.7:
Identify every patent or patent application, to which You are either an assignee
or
a licensee, that relates to any feature that is currently implemented, or has in the past been
implemented, in the Accused Products.
RESPONSE TO INTERROGATORY NO.7:
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. Further, Yahoo! objects to this
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interrogatory to the extent it seeks information that is otherwise available from another source
that is more convenient, less burdensome, or less expensive, such as review of publicly available
patents or patent applications and requests for document production.
SUPPLEMENTAL RESPONSE TO INTERROGATORY NO.7:
Subject to its general objections and the specific objections set forth above,
Yahoo! supplements its response as follows:
Based on its investigation to date, Yahoo! identifies the following issued patents
as claiming or describing (in whole or in par) features or functionality in the products Function
Media accuses of infringement in its First Amended P.R. 3-1 Disclosures of Asserted Claims and
Infringement Contentions: U.S. Patent Nos. 6,269,361; 6,826,572; 6,978,263; 6,983,272;
7,035,812; 7,043,483; 7,092,901; 7,231,358; 7,464,079; 7,373,599.
However, Yahoo!'s investigation is ongoing and Yahoo! wil supplement this
resp(mse if or when it locates other responsive, non-privileged patents or published applications
that describe pertinent features of the accused products.
DATED: February 20,2009
Respectfully submitted,
WElL, GOTSHAL & M
-S\£.~=' W ~rc.o-t
Douglas E. Lumish
~~.
Matthew D. Powers (Bar. No. 04795)
matthew. powers (Q weiL.com
Douglas E. Lumish (Bar. No. 183863) doug.lumish (Qweil.com WElL, GOTHAL & MANGES LLP Silicon Valley Office 201 Redwood Shores Pkwy. Redwood Shores, CA 94065
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Tel: 650.802.3000
Fax: 650.802.3100
Attorneys for Defendant Yahoo!, Inc.
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