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 5

WEll, GOTSHAl & MANGES LLP
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WRITER'S DIRECT LINE

jeffrey. hom rig(Qweil.com

(650) 802-3//9

September 4, 2008

WASHINGTON, D.C.

BY

EMAIL

Jeremy Brandon, Esq. 1000 Louisiana Street Suite 5100 Houston, TX 77002-5096 [phone]

Re: Function Media LLC v. Google, Inc. & Yahoo!, Inc.
Dear Jeremy:
I am wrting to follow-up on our recent conversation regarding Function

Media's March 7, 2008 letter to Doug Lumish proposing a set of search terms and a "non-exclusive list" of document requests. Section I, below, sets forth non-exclusive responses and objections to Function Media's requests under par "A" of your March 7
letter. Please note that Yahoo! is responding to these requests as a courtesy, and that any omitted objection to your requests should not be construed as a waiver ofthe objection.

Further, as we discussed, some of Function Media's proposed terms and

custodian categories are overbroad and would impose undue burden and expense.
Sections II and III, also below, list reasonable alternatives to these terms and categories.
i. Yahoo!'s Responses and Objections to Function Media's Document Requests

Yahoo! objects generally to your letter to the extent it seeks information protected by the attorney-client privilege and/or the work-product doctrine. Yahoo! also
objects to your definitions and requests to the extent they are overbroad, unduly

burdensome, and not reasonably calculated to lead to the discovery of admissible
evidence, and to the extent they purort to seek information not within Yahoo!'s

WElL, GOTSHAL& MANGES LLP

Jeremy Brandon, Esq.
September 4, 2008
Page

2

possession, custody, or control. Yahoo! wil only produce documents related to Yahoo! products specifically accused in Function Media's March 3, 2008 infrngement contentions. Yahoo! further objects to your letter to the extent it imposes deadlines or requirements inconsistent with those set forth in the Federal Rules of Civil Pro'cedure, the Local Rules, and the Cour's Orders. Moreover, Yahoo! objects to your letter to the extent it seeks the disclosure of information that is confidential, proprietary, and/or trade secret information of third paries that is in Yahoo!'s possession subject to an obligation to a third pary. Furher, Yahoo! objects to your letter to the extent it seeks production of documents or things that are publicly available or already in Function Media's possession, custody, or control. Yahoo!'s responses to Function Media's specific
requests are as follows:

1. For any of the Accused Products, all documents concerning the

implementation of the Accused Products by Google and Yahoo, including
code (including executable or compatible code), product specifications,

flowcharts, models, drawings, promotional literature, advertising,
engineering design, engineering analysis and testing.

RESPONSE: In addition to its general objections, Yahoo! objects to this request as vague and overbroad. Yahoo! fuher objects to this request to the extent it imposes
undue burdens and costs associated with demands for information from sources that are not reasonably accessible. Furher, Yahoo! objects to this request to the extent it seeks information protected by the attorney-client privilege and/or the work-product doctrne.
Subject to its objections, Yahoo! has produced or wil produce responsive, non-privileged

documents suffcient to show the structue, fuctionality, and operation of the pertinent
features of Yahoo! ' s accused products, to the extent such documents exist and are located

after a reasonable search. With respect to source code, Yahoo! wil make available for
inspection source code for the pertinent features of Yahoo!'s accused products. The parties should meet and confer to discuss the features for which source code wil be made available for inspection and the timing of the first inspection.
2. All documents mentioning or concerning any Accused Product's

placement or targeting of advertisements, including code (including executable or
compatible code), product specifications, flowchars, models, drawings,

promotional literature, advertising, engineering design, engineering analysis and testing.

RESPONSE: In addition to its general objections, Yahoo! objects to this request as vague and overbroad. Yahoo! fuher objects to this request to the extent it imposes
undue burdens and costs associated with demands for information from sources that are

WElL, GOTSHAL& MANGES LLP

Jeremy Brandon, Esq.
September 4, 2008
Page 3

not reasonably accessible. Further, Yahoo! objects to this request to the extent it seeks information protected by the attorney-client privilege and/or the work-product doctrine.
Subject to its objections, Yahoo! has produced or wil produce responsive, non-privileged
documents suffcient to show the placement or targeting of advertisements in Yahoo!'s

accused products, to the extent such documents exist and are located after a reasonable search. With respect to source code, Yahoo! wil make available for inspection source code for the pertinent featues of Yahoo!'s accused products. The paries should meet and confer to discuss the featues for which source code wil be made available for inspection and the timing of the first inspection.
3. All documents mentioning or concerning the pncing of the Accused

Products to any end user. This request includes pricing to advertisers using the Accused Products and pricing or revenue-sharng for media that displays
advertisements using the Accused Products.

RESPONSE: In addition to its general objections, Yahoo! objects to this request as vague, overbroad and unduly burdensome. Yahoo! fuher objects to this request to the
extent it seeks the disclosure of information that is confidential, proprietar, and/or trade secret information of third paries that is in Yahoo!'s possession subject to an obligation to a third party. Further, Yahoo! objects to this request to the extent it seeks information
protected by the attorney-client privilege and/or the work-product doctrine.

Subject to its objections, Yahoo! has produced or wil produce responsive, non-privileged
documents suffcient to show pricing information for the pertinent features of Yahoo!'s

accused products, to the extent such documents exist and are located after a reasonable
search.
4. All documents mentioning or concerning any of the Patents-in-Suit or

their applications - including parents, divisional, continuation, or continuation-inpart applications, whether or not they matued into parents.

RESPONSE: In addition to its general objections, Yahoo! objects to this request as
overbroad and unduly burdensome. Yahoo! fuher obj ects to this request to the extent it seeks information protected by the attorney-client privilege and/or the work-product doctrine. Furher, Yahoo! objects to this request to the extent it seeks information that is publicly available or in Function Media's possession, custody, or control. Yahoo! also

objects to the extent this request is premature in light of the Cour's timeline for the
parties' 3-8 disclosures.

WElL, GOTSHAL & MANGES LLP

Jeremy Brandon, Esq.
September 4, 2008
Page

22

Subject to these objections, Yahoo! identifies the following three people
as knowledgeable about the business plans and reasons for developing the pertinent features of the Accused Products:
John Slade

Matt Plumer
Ivan Markman
5. "The three people most knowledgeable about the revenues and profits

associated with the Accused Products."
Yahoo! objects to this category as vague and overbroad.

Subject to these objections, Yahoo! identifies the following three people as knowledgeable about the revenues and profits attributable to the pertinent featues of
the Accused Products:

Glen Hastings

Qasim Saifee
Magdalena Chow
6. "The three people most knowledgeable about Google and Yahoo's

patent licensing policies, procedures, and past licenses."
Yahoo! objects to this category as vague and overbroad.

Subject to these objections, Yahoo! identifies the following person as
knowledgeable about Yahoo!'s licensing policies concerning patent licenses comparable to the license that would be at issue in the damages analysis in this action:
Joseph Siino
Sincerely,

..

Jeffrey Homrg