Polaris IP, LLC v. Google Inc. et al

Filing 356

Opposed MOTION to Amend/Correct Protective Order by Bright Response LLC. (Attachments: # 1 Affidavit Spangler Declaration, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I)(Spangler, Andrew) (Additional attachment(s) added on 6/15/2010: # 11 Text of Proposed Order) (ch, ).

Exhibit F

Andrew Spangler
From: Sent: To: Andrew Spangler Tuesday, June 08, 2010 11:04 PM Josh Thane; '[e-mail]'; '[e-mail]'; '[e-mail]'; '[e-mail]'; '[e-mail]'; '[e-mail]'; '[e-mail]'; '[e-mail]'; David Perlson; 'Eugene Novikov'; Todd Kennedy; Andrea P Roberts; '[e-mail]'; '[e-mail]'; '[e-mail]' 'Rooklidge, William'; 'White, Jason'; 'Shah, Mansi'; 'Sherwin, Scott'; Jennifer Doan; Andrew Spangler RE: Bright Response v. Yahoo Proposed Amended Protective Order (redline).doc

Cc: Subject: Attachments:

Counsel, Please see attached. A few observations. Defendants (and when I say Defendants I am directing for the most part at Yahoo) continue to play games and make a mockery of this Court and its rules. Let's look at some incontrovertible facts. 1. Yahoo waited nearly two years to raise the issue of having Mr. Pridham barred under the Protective Order. Fact. 2. Yahoo sought an agreement for expedited briefing on the issue due to its alleged importance. Fact. 3. After first raising the issue, Yahoo waited almost a week before actually filing its emergency motion. Fact. 4. During briefing, Yahoo needed and gave extensions for filing knowing Mr. Pridham was viewing confidential documents. Fact. 5. Court issues an order stating that Mr. Pridham is barred from viewing Confidential Information and that the parties should submit an agreed protective order in one week. Fact. 6. BR waits a couple of days and then asks Yahoo when it plans to provide its proposal as there is a deadline. Fact. 7. More time passes and Yahoo still has not provided a proposed amended PO. Fact. 8. BR again states that it has not seen a proposal but will be filing its order on Wednesday no matter what (the Court ordered deadline). Fact. 9. BR also stated it wanted the PO modified to address the fact that Mr. Pridham has already looked at confidential information in the past and that access to financial documents should be allowed as well. Fact 10. The night before the Court's deadline and after two rounds of email correspondence initiated by BR, Yahoo finally proposes a modified protective order. Fact. 11. Yahoo's provisions do not address in any way BR's limited requests. Fact 12. Yahoo's provisions include changing deadlines for patent procurement and patent bars despite nothing in the order requiring that change. Fact. So now the parties are left scrambling to try and get an agreed order on file without much time to even discuss. Shockingly this will likely result in the inability of the parties being able to submit and order that is agreed. BR will be providing notice of the above conduct (and more) if this does not get resolved amicably. In all honesty I have finally reached the point that I do not know whether Yahoo counsel is incompetent or purposefully ignorant. The Court has found repeatedly that it has been Yahoo in violation of the Court's PO. It is Yahoo the Court admonished for modifying the PO by self help and only after getting caught sought to modify the PO. Then Yahoo seeks another modification which the Court grants and Yahoo does nothing to try and comply with the Court's Order and instead, at the repeated insistence of the plaintiff, provides an over the top, far overreaching modified PO that no reasonable lawyer would accept. In addition, it does not address in any way the concerns previously disclosed to Yahoo. To be clear, BR's Amended PO complies with the Court's Order and bars Mr. Pridham from viewing Confidential, Confidential Outside Counsel Only and Confidential Source Code, as Bright Response believes the Court directed. The Court's Order permits amendments to the PO for specific issues. In this case, BR raised them before filing the motion so they don't get raised afterwards and unduly bury the Court in briefing again. First, BR believes Mr. Pridham should have access to documents and information produced prior to the Court's Order. BR's reasoning is based, in part, on the
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fact that Mr. Pridham cannot unlearn what he knows. Accordingly, there can be no prejudice with Mr. Pridham assisting in an expert reports as long as that role is limited to information already produced prior to the Court's Order. In addition, as Yahoo continues to assert it was the future harm that it was concerned of, BR does not understand why allowing Mr. Pridham to see previous information would be inappropriate. Second, BR reqeusted that Mr. Pridham be permitted to view financial data produced by the parties. The bases for excluding Mr. Pridham from access to confidential information in the cases cited by Yahoo were directed to having confidential technical information that would assist in the acquisition of new patents. Yahoo's own brief focuses on source code and other technical information. Moreover, Mr. Pridham has been actively involved in developing the damages portion of the case and BR would be prejudiced if BR no longer had his services direct to that area of the case. Let us know your position on the edits and the express two issues we raised. We are not waiting until the end of the day. Regards, Andrew Spangler
From: Josh Thane [mailto:[e-mail]] Sent: Tuesday, June 08, 2010 6:41 PM To: '[e-mail]'; '[e-mail]'; '[e-mail]'; '[e-mail]'; '[e-mail]'; '[e-mail]'; '[e-mail]'; '[e-mail]'; David Perlson; 'Eugene Novikov'; Todd Kennedy; Andrea P Roberts; '[e-mail]'; Andrew Spangler; '[e-mail]'; '[e-mail]' Cc: 'Rooklidge, William'; 'White, Jason'; 'Shah, Mansi'; 'Sherwin, Scott'; Jennifer Doan Subject: Bright Response v. Yahoo

Counsel, Please find attached our proposed amended protective order, which addresses Yahoo's confidentiality concerns and the Court's Order of June 2, 2010. For your convenience I have attached both in redline and redline accepted. Regards, Josh Josh Thane, J.D. HALTOM & DOAN
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