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 3

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION
FUNCTION MEDIA LLC,
Plaintiff,
vs.
§ Civil Action No. 2:07-CV-279-TJW
§

§
§ §

§ JURY TRIAL DEMANDED
§ § §

GOOGLE INC. AND YAHOO!, INC.,
Defendants.

§ § §

DEFENDANT YAHOO!, INC.'S OBJECTIONS AND RESPONSES TO PLAINTIFFS' NOTICE OF F.R.C.P. 30(b)(6) DEPOSITION OF YAHOO!, INC. PURSUANT TO RULE 30(b)(6) OF THE FEDERAL RULES OF CIVIL PROCEDURE
Defendant Yahoo!, Inc. ("Yahoo!") objects to Plaintiff

Function Media's Notice

of Deposition of Yahoo!, Inc. Pursuant to Fed. R. Ci v. P. 30(b)( 6) ("Notice"), as follows.

GENERAL OBJECTIONS

A. Yahoo! objects to the Notice and its attached deposition topics to the
extent they seek to depose Yahoo! concerning information protected by the attorney-client

privilege, the work product doctrine, and/or any other applicable privilege or immunity. Yahoo!

reserves its rights to object and to instruct any witness at deposition not to answer regarding
specific questions which would elicit such privileged information.

B. Yahoo! objects to the Notice and its attached Deposition Topics to the
extent they purport to impose obligations beyond those required by the Federal Rules of Civil
Procedure or the Local Rules.

C. Yahoo! objects to the Notice and its attached Deposition Topics to the
extent they call for testimony that relates to the confidential, proprietary, and/or trade secret

information of a third pary that is in Yahoo!'s possession subject to an obligation to a third

J. Yahoo! objects to the definitions of "publishing" and "publication" in

Exhibit B of the Notice on the grounds that they are vague and ambiguous. Yahoo! further
objects to the definitions of "publishing" and "publications" to the extent that they purport to
define terms that are subject to the Court's claim construction order, which as not yet been issued
in this case.

K. Yahoo! objects to the definition of "Accused Products" on the grounds
that it is vague and ambiguous. Yahoo! further objects to the definition of "Accused Products"

because it is overbroad and unduly burdensome to the extent that it includes within the definition
products, systems, technologies, functionalities, or services not specifically disclosed in Function
Media's First Amended P.R. 3-1 Disclosures of Asserted Claims and Infringement Contentions.

L. Yahoo!'s discovery and investigation in connection with this lawsuit is
continuing. As a result, Yahoo!'s responses are limited to information obtained to date, and are
given without prejudice to Yahoo!'s right toamend or supplement its responses after considering
information obtained through further discovery or investigation. Yahoo!' s production of

witnesses in response to this Notice shall not constitute an admission of the relevance or
materiality of the subject matters for testimony set forth in this Notice and its attachments.

M. These General Objections are incorporated by reference in each response

to each Deposition Topic and shall not be repeated in every response to which they are
applicable. All responses are provided subject to and without waiving the General Objections.

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SPECIFIC OBJECTIONS AND RESPONSES

DEPOSITION TOPIC NO. IA.:
A detailed description and analysis of the functionality, features, software, and/or

methodology of the Accused Products, including but not limited to the functionality, features,

and/or methodology of the Yahoo! Search Marketing interface and any predecessor interface
used by sellers to input data.

RESPONSE TO DEPOSITION TOPIC NO. IA:
Yahoo! incorporates by reference each of the General Objections stated above. In

addition to the General Objections, Yahoo! objects to this Deposition Topic as vague and
ambiguous. Yahoo! further objects to this Deposition Topic because it is overly broad and
unduly burdensome and not likely to lead to the discovery of admissible evidence, paricularly to
the extent it seeks testimony on products and features that are not specifically disclosed in

Function Media's First Amended P.R. 3-1 Disclosures of Asserted Claims and Infringement
Contentions. Yahoo! further objects to the extent this Deposition Topic seeks testimony that is
neither relevant to the claims and defenses in this lawsuit nor reasonably calculated to lead to the
discovery of admissible evidence. Yahoo! further objects to this Deposition Topic to the extent

it seeks testimony that is protected by the attorney-client privilege, the work product doctrine, or

any other applicable privilege or immunity. Yahoo! also objects to this Deposition Topic to the

extent it seeks testimony that is available through other means that are more convenient, less
burdensome or less expensive, including documents produced by Yahoo! in response to Function
Media's document requests.

Subject to and without waiving its objections, Yahoo! wil designate one or more

witnesses to testify on the pertinent functionality, features, software and/or methodologies of
Yahoo! Publisher Network Beta and Yahoo! Content Match running on the YPN ("Accused

Instrumentalities"), to the extent such a witness can be located and reasonably prepared to
testify.

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DEPOSITION TOPIC NO. lB.:
A detailed description and analysis of the functionality, features, software, and/or

methodology of the Accused Products, including but not limited to the functionality, features,
and/or methodology of the Yahoo! Publisher Network interface and any predecessor interface
. used by sellers to input data.

RESPONSE TO DEPOSITION TOPIC NO. IB:
Yahoo! incorporates by reference each of the General Objections stated above. In

addition to the General Objections, Yahoo! objects to this Deposition Topic as vague and
ambiguous. Yahoo! further objects to this Deposition Topic because it is overly broad and
unduly burdensome, paricularly to the extent it seeks testimony on products and features that are

not specifically disclosed in Function Media's First Amended P.R. 3-1 Disclosures of Asserted
Claims and Infringement Contentions. Yahoo! further objects to the extent this Deposition Topic

seeks testimony that is neither relevant to the claims and defenses in this lawsuit nor reasonably
calculated to lead to the discovery of admissible evidence. Yahoo! further objects to this

Deposition Topic to the extent it seeks testimony that is protected by the attorney-client
privilege, the work product doctrine, or any other applicable privilege or immunity. Yahoo! also

objects to this Deposition Topic to the extent it seeks testimony that is available through other
means that are more convenient, less burdensome or less expensive, including documents

produced by Yahoo! in response to Function Media's document requests.

Subject to and without waiving its objections, Yahoo! wil designate one or more
witnesses to testify on the pertinent functionality, features, software, and/or methodology of the
Accused Instrumentalities, to the extent such a witness can be located and reasonably prepared to
testify.

DEPOSITION TOPIC NO. IC:
A detailed description and analysis of the functionality, features, software, and/or

methodology of the Accused Products, including but not limited to the functionalities, features,

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software, and/or methodologies of the Accused Products for creating, designing, formatting,

processing, modifying, publishing, and/or displaying advertisements or advertisement content.

RESPONSE TO DEPOSITION TOPIC NO. iC:
Yahoo! incorporates by reference each of the General Objections stated above. In

addition to the General Objections, Yahoo! objects to this Deposition Topic as vague and
ambiguous. Yahoo! further objects to this Deposition Topic because it is overly broad and
unduly burdensome, paricularly to the extent it seeks testimony on products and features that are

not specifically disclosed in Function Media's First Amended P.R. 3-1 Disclosures of Asserted
Claims and Infringement Contentions. Yahoo! further objects to the extent this Deposition Topic

seeks testimony that is neither relevant to the claims and defenses in this lawsuit nor reasonably
calculated to lead to the discovery of admissible evidence. Yahoo! further objects to this

Deposition Topic to the extent it seeks testimony that is protected by the attorney-client
privilege, the work product doctrine, or any other applicable privilege or immunity. Yahoo! also

objects to this Deposition Topic to the extent it seeks testimony that is available through other
means that are more convenient, less burdensome or less expensive, including documents

produced by Yahoo! in response to Function Media's document requests.

Subject to and without waiving its objections, Yahoo! wil designate one or more
witnesses to testify on the pertinent functionality, features, software, and/or methodology of the
Accused Instrumentalities, to the extent such a witness can be located and reasonably prepared to
testify.

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DEPOSITION TOPIC NO. ID:
A detailed description and analysis of the functionality, features, software, and/or

methodology of the Accused Products, including but not limited to the software and functions
that utilize, apply, execute, process, or manipulate input data in the creation, design, formatting,
processing, modification, selection, targeting, and/or publication of advertisements.

RESPONSE TO DEPOSITION TOPIC NO. ID:
Yahoo! incorporates by reference each of the General Objections stated above. In

addition to the General Objections, Yahoo! objects to this Deposition Topic as vague and
ambiguous. . Yahoo! further objects to this Deposition Topic because it is overly broad and
unduly burdensome, particularly to the extent it seeks testimony on products and features that are

not specifically disclosed in Function Media's First Amended P.R. 3-1 Disclosures of Asserted
Claims and Infringement Contentions. Yahoo! further objects to the extent this Deposition Topic

seeks testimony that is neither relevant to the claims and defenses in this lawsuit nor reasonably
calculated to lead to the discovery of admissible evidence. Yahoo! further objects to this

Deposition Topic to the extent it seeks testimony that is protected by the attorney-client
privilege, the work product doctrine, or any other applicable privilege or

immunity. Yahoo! also

objects to this Deposition Topic to the extent it seeks testimony that is available through other
means that are more convenient, less burdensome or less expensive, including documents

produced by Yahoo! in response to Function Media's document requests.

Subject to and without waiving its objections, Yahoo! wil designate one or more
witnesses to testify on the pertinent functionality, features, software, and/or methodology of the

Accused Functionalities, to the extent such a witness can be located and reasonably prepared to
testify.

DEPOSITION TOPIC TESTIMONY NO.2:
The history, versions, and releases of the Accused Products, including but not

limited to the dates and differences in features and functionalities among such versions and

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releases as well as the integration of any acquired advertisement technologies, products, or

services into Yahoo!' s advertising technologies, products, or services.

RESPONSE TO DEPOSITION TOPIC NO.2:
Yahoo! incorporates by reference each of the General Objections stated above. In

addition to the General Objections, Yahoo! objects to this Deposition Topic as vague and
ambiguous. Yahoo! further objects to this Deposition Topic because it is overly broad and
unduly burdensome, paricularly to the extent it seeks testimony on products and features that are

not specifically disclosed in Function Media's First Amended P.R. 3-1 Disclosures of Asserted
Claims and Infringement Contentions. Yahoo! further objects to the extent this Deposition Topic

seeks testimony that is neither relevant to the claims and defenses in this lawsuit nor reasonably
calculated to lead to the discovery of admissible evidence. Yahoo! further objects to this

Deposition Topic to the extent it seeks testimony that is protected by the attorney-client
privilege, the work product doctrine, or any other applicable privilege or immunity. Yahoo! also

objects to this Deposition Topic to the extent it seeks testimony that is available through other
means that are more convenient, less burdensome or less expensive, including documents

produced by Yahoo! in response to Function Media's document requests. Yahoo! further objects
to this Deposition Topic to the extent it seeks testimony that is outside the knowledge ofYahooL

Subject to and without waiving its objections, Yahoo! wil designate one or more
witnesses to testify on the history, versions, and releases of the pertinent features of the Accused
Instrumentalities, to the extent such a witness can be located and reasonably prepared to testify.

DEPOSITION TOPIC NO.3.:

The factual bases for Yahoo!'s allegations of non-infringement asserted in its
Answer in the above-captioned case, including (a) identification of any limitation of any asserted

claim in the patents-in-suit that Yahoo! contends is not present in the Accused Products, and (b)
the basis for each such contention.

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RESPONSE TO DEPOSITION TOPIC NO.3:
Yahoo! incorporates by reference each of the General Objections stated above. In
addition to the General Objections, Yahoo! objects to this Deposition Topic to the extent it seeks

information available through other means that are more convenient, less burdensome or less
expensive, including documents produced by Yahoo! in response to Function Media's document

requests, answers to interrogatories, and expert reports. Yahoo! further objects that this
Deposition Topic is premature, overly broad and/or unduly burdensome to the extent it asks
Yahoo! for testimony regarding "factual bases" for non-infringement given that discovery has

recently commenced, and Yahoo!'s investigation is on-going. Yahoo! further objects to this
Deposition Topic because it is overly broad and unduly burdensome, particularly to the extent it
seeks testimony on products and features that are not specifically disclosed in Function Media's
First Amended P.R. 3-1 Disclosures of Asserted Claims and Infringement Contentions. Yahoo!

further objects to the extent this Deposition Topic seeks testimony that is neither relevant to the

claims and defenses in this lawsuit nor reasonably calculated to lead to the discovery of
admissible evidence. Yahoo! further objects to this Deposition Topic to the extent it seeks
testimony that is protected by the attorney-client privilege, the work product doctrine, or any

other applicable privilege or immunity. Yahoo! further objects to this Deposition Topic as
seeking improper testimony from a non-expert, pary witness and as premature because it seeks
expert opinion testimony prior to the disclosure dates set forth in Federal Rule of Civil Procedure

and the Court's Scheduling Order for expert discovery, before substantial discovery has
occurred, and because the Court has not yet entered a claim construction ruling in this case.

Yahoo! further objects to this Deposition Topic to the extent it seeks testimony on legal
conclusions. Yahoo! further objects to this Deposition Topic to the extent it is duplicative of

Deposition Topic 1.

DEPOSITION TOPIC NO.4:
How, when, and through whom Yahoo! first became aware of each of the patentsin-suit.

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RESPONSE TO DEPOSITION TOPIC NO.4:
Yahoo! incorporates by reference each of the General Objections stated above. In addition to the General Objections, Yahoo! objects to this Deposition Topic to the extent it

seeks information through other means that are more convenient, less burdensome or less
expensive, including Yahoo!'s responses to Function Media's interrogatories and documents
produced by Yahoo! in response to Function Media's document requests. Yahoo! further objects

to this Deposition Topic on the grounds that it seeks information that is protected by the
attorney-client privilege, the work product doctrine, or any other applicable privilege or

immunity. Yahoo! further objects to this Deposition Topic to the extent it seeks testimony that
requires Yahoo! to make legal conclusions and/or render expert opinions. Yahoo! further objects

to this Deposition Topic to the extent it is premature in light of the Court-imposed schedule and
P.R. 3-7.

Subject to and without waiving its objections, Yahoo! wil designate one or more
witnesses to testify concerning non-privileged information responsive to this topic, to the extent
such a witness can be located and reasonably prepared to testify.

DATED: February 9, 2009

Respectfully submitted,

9"

ItNw D.'m a the Powers

matthew. powers (g weil.com

Douglas E. Lumish doug.lumish (gweil.com WElL, GOTSHAL & MANGES LLP 201 Redwood Shores Parkway Redwood Shores, CA 94065 650-802-3000 (Telephone) 650-802-3100 (Facsimile)
Attorneys for Defendant Yahoo!, Inc.

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