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 13

WEll, GOTSHAl& MANGES LLP
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DOUGLAS E. LUMISH
DIRECT LINE [phone] E-MAIL: doug.lumishl§weil.com

February 20, 2009

VIAE-MAIL
Jeremy Brandon, Esq. Susman Godfrey LLP 1000 Louisiana, Suite 5100 Houston, TX 77002 [phone]

Re: Function Media. LLC v. Google, Inc. and Yahoo!, Inc. Case No. 07-00279
Dear Jeremy:

I am writing to follow up on our ongoing meet and confer and in response

to your letter of December 30, 2008 and our more recent telephone conferences.
Enclosed with this letter are supplementary interrogatory responses which we hope wil resolve many of the open issues. Further, the following responds to specific statements in your letter.

Interrogatory No.1: In our meet and confer teleconference and in earlier letters I explained to you that Function Media's interrogatory is vastly overbroad and unduly burdensome in asking Yahoo! to identify every individual at the company who "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." As a compromise, you proposed during the teleconference that Yahoo! identify whether it has any deparments that are responsible for tracking or analyzing its competitors in the advertising field. In the interest of resolving the dispute, we agreed to this proposal. Now, in your letter, you return to the extreme scope of the

interrogatory by asking for "any employee (regardless of deparment) whose job
description or day-to-day routine includes this sort of thing (track or analyze competitor activities)." As we have explained repeatedly, the large majority of employees at Yahoo! are likely to track or analyze competitor activities in some way as par of their "day-to-

WEll, GOTSHAl & MANGES LLP

Jeremy Brandon, Esq. February 20, 2009
Page 2

day routine." Accordingly, Yahoo! cannot agree to your new position concerning this interrogatory. Yahoo! has supplemented its response to identify its department that is
responsible for tracking or analyzing its competitors in the advertising field.

Interrogatory NO.2: We have searched for documents related to Mr.
Brock and the discussions Function Media alleges he had with Michael Dean. No such
documents were located.

In your letter you complain that Yahoo! had not produced documents from

Mr. Brock and comment that Mr. Brock's past employment with Yahoo! can be
determned by an internet search. While this may be true, Mr. Brock left Yahoo! approximately five years ago. Moreover, we understood from your comments in earlier discussions that Mr. Brock was an attorney at Yahoo!. We quickly confirmed that he was not and never had been. After you informed me in our teleconference that he was not an attorney but held a business position at Yahoo!, we continued our search.

Interrogatory NO.3: It appears we have been unable to reach agreement on this interrogatory-your letter notes only that a privilege log-level table is "okay as a staring point for discussions." Yahoo! has supplemented its interrogatory responses to

identify prior ar documents received from third paries (i.e., prior ar other than that
obtained from prior ar searching performed by Yahoo! or Google's litigation team and their vendors or consultants) and to identify the third paries from whom these documents were obtained. As you wil see, to date, any such documents have come to Yahoo! from Google.

Interrogatory NO.4: You appear to misunderstand Yahoo!'s position on this interrogatory. Yahoo!'s response does not rely on Fed. R. Civ. P. 33(d) as you suggest, but includes objections based on Fed. R. Civ. P. 26(b)(2)(C)(i) that the discovery sought is unreasonably cumulative of and can be obtained from another source that is
more convenient, less burdensome, or less expensive including Yahoo!'s document

production. As we have explained repeatedly, the added burden from the interrogatory would be enormous for Yahoo! and would produce little or no relevant information. As previously noted, if Function Media would like to propose a narower scope to this interrogatory, Yahoo! is happy to continue to meet and confer on this issue.
Interrogatory NO.5: As stated in my last letter, to resolve the dispute over this interrogatory, Yahoo! wil agree to provide the total U.S. revenues for the accused products. A supplemental response to Interrogatory No. 9 is enclosed with this letter.

Your letter further asks Yahoo! to identify "revenues (that) were not derived from
Accused products that had been manufactured, used, imported into, offered for sale, or sold in the United States." It is unclear what you are asking for here and whether that differs from the information included in Yahoo!' s supplemental response. To the extent

WEll, GOTSHAL & MANGES LLP

Jeremy Brandon, Esq.
February 20,2009
Page 3

you are asking for a response that includes revenues for products other than those accused of infringement in this action, Function Media has failed to explain how such information is relevant or reasonably calculated to lead to the discovery of admissible information and
Yahoo! does not agree to supplement with such information. In any event, Yahoo!'s

public filings with the SEC include the company's total revenues and Function Media has
unfettered access to those filngs.

Interrogatory NO.6: As I have explained several times, Yahoo! has not located any patent licenses concerning comparable licenses or concerning the accused technology that were not reached in the settlement of litigation. If it locates any such licenses, it wil produce them.

Interrogatory NO.7: Yahoo! has supplemented its response to this
interrogatory, and we hope this issue is now resolved.

Please let me know if you have any questions or if you wish to meet and confer further on any of these issues.

~yours,. /
Douglas E. Lumish

VC~(