Polaris IP, LLC v. Google Inc. et al

Filing 339

RESPONSE in Opposition re 322 SEALED MOTION Emergency Supplemental Brief in Support of January 25, 2010 Motion to Compel Yahoo! Inc. to Comply with Court Order of November 5, 2009 and Produce Source Code in Native Format filed by Yahoo!, Inc.. (Attachments: # 1 Declaration of Scott Sherwin, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Declaration of Jennifer Doan, # 5 Exhibit 3, # 6 Exhibit 4)(Doan, Jennifer)

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Exhibit 1 321 North Clark Street Suite 3400 Chicago, IL 60654-4717 www.howrey.com May 7, 2010 Scott D. Sherwin Associate T: 312.846.5643 F: 312.595.2250 sherwins@howrey.com VIA EMAIL Andrew D. Weiss Russ August & Kabat 12424 Wilshire Blvd., Suite 1200 Los Angeles, CA 90025 Re: Dear Andrew: Thank you for your April 28, 2010 email regarding Yahoo! Inc.'s (Yahoo!) source code. (Email attached as Exhibit 1). This email is the first time that Bright Response, LLC (Bright Response) requested Yahoo!'s "Click Protection System" source code. After sending this email, the parties discussed the relevancy of the "Click Protection System" source code at the joint meet-and-confer on May 4, 2010. At this meet-and-confer, Yahoo! expressed its concern that this source code is not relevant to any of the claims or defenses in this case. In particular, Yahoo! stated that it does not believe that any of this source code relates to sending or receiving an electronic message. In response to Yahoo!'s concerns that the "Click Protection System" source code was not relevant, Bright Response stated that the relevancy of this code was disclosed in its Infringement Contentions related to claim 28. Since the May 4, 2010 meet-and-confer, Yahoo! has had the opportunity to review Bright Response's Infringement Contentions related to claim 28. Specifically, Yahoo! reviewed the infringement charts that accompanied the June 6, 2008 and January 22, 2010 Infringement Contentions. Despite our best efforts to locate an explanation in these contentions of why the "Click Protection System" source code is relevant to claim 28, we have been unable to do so. In addition, we have performed a keyword search of the remainder of both infringement charts; however, this process also resulted in no references to Yahoo's "Click Protection System." If we have missed Bright Response's disclosure of how the "Click Protection System" source code is relevant to claim 28, please direct us to the pages that contain this information. If you can provide this information, Yahoo! will reconsider your request for this source code. Absent this information, or an alternative explanation of why the "Click Protection System" source code is relevant to this case, Yahoo! is not obligated to produce this irrelevant source code. Bright Response v. Google Inc. et al. AMSTERDAM BRUSSELS CHICAGO EAST PALO ALTO HOUSTON IRVINE LONDON LOS ANGELES MADRID MUNICH NEW YORK NORTHERN VIRGINIA PARIS SALT LAKE CITY SAN FRANCISCO TAIPEI WASHINGTON, DC Andrew D. Weiss May 7, 2010 Page 2 At the May 4, 2010 meet-and-confer, Yahoo! also indicated that it would endeavor to identify 30(b)6 witnesses. Below is the most current information. We will promptly update you once we have any additional informat ion. · · · · · David Kolm (Sponsored Search): May 26, Howrey's East Palo Alto, CA office; Melissa Stein (Content Match): June 2, Howrey's Los Angles, CA office; Ben Shahshahani (YST): TBD; David Eaton (Finances): TBD; and Luke Yeh (Licensing): TBD. Should you have any additional questions, please feel free to contact me at any time. Kind Regards, /s/ Scott D. Sherwin Scott D. Sherwin SDS:mrv

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