ESN LLC v. Cisco Systems, Inc. et al

Filing 123

Second MOTION to Compel Response to Cisco's Seventh Interrogatory by Cisco Systems, Inc., Cisco-Linksys LLC. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Errata G, # 8 Exhibit H, # 9 Exhibit I, # 10 Text of Proposed Order)(Smith, Kevin)

Exhibit C

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TEXARKANA DIVISION ESN, LLC, Plaintiff, V. CISCO SYSTEMS, INC. and CISCO-LINKSYS, LLC, Defendants. Civil Action No. 5:08-CV-20-DF

PLAINTIFF'S ANSWERS TO DEFENDANTS' SECOND SET OF INTERROGATORIES Plaintiff ESN, LLC ("ESN") submits its answers to Defendants' Cisco Systems, Inc. and Cisco-Linksys, LLC (collectively hereafter"Cisco")'s Second Set of Interrogatories. GENERAL OBJECTIONS ESN objects to Cisco's Interrogatories to the extent they seek information, documents or things that are protected by the attorney-client privilege, immune from discovery pursuant to the work product doctrine, or protected or immunized by any other applicable privilege or immunity. All of the following responses and answers are made subject to this objection and none of the following responses or answers will include any such privileged, protected or immune information, documents or things.
ESN objects to each Interrogatory, including all accompanying Definitions and Instructions, to the extent that they attempt to impose upon ESN discovery obligations beyond those required by the Federal Rules of Civil Procedure, the Local Rules of the U.S. District Court for the Eastern District of Texas, Texarkana Division, other Court specific rules and/or the Court's Docket Control Order establishing discovery deadlines and pretrial requirements.

ESN objects to each Interrogatory and each Definition and/or Instruction to the extent it is overly broad, unduly burdensome, irrelevant, vague, ambiguous, indefinite, lacking in reasonable particularity, untimely, premature or seeks information, documents or things uniquely in the possession, custody or control of Cisco, its divisions, affiliates, officers, directors, employees, agents, representatives, distributors and/or customers. ESN objects to each Interrogatory to the extent said Interrogatory calls for a legal conclusion, opinion testimony or expert opinion. To the extent that ESN provides a response arguably within the scope of any definition set forth by Cisco, such response by ESN shall not be construed to be an admission by ESN to the validity or scope of any such definition. Any answers, responses, documents, things or information provided by ESN should be treated in accordance with the provisions of the Protective Order that has been entered in this case. Prior to the entry of any such Protective Order, any answers, responses, documents, things or information provided by ESN should be treated as Confidential - Outside Attorneys Eyes Only. Discovery is ongoing, and ESN is continuing its preparation for trial. All responses to the following Interrogatories are based on information presently known to ESN after a reasonable effort to compile information called for by these Interrogatories. All answers are

given without prejudice to ESN's right to supplement and/or modify its responses at a later time. In addition, ESN's objections set forth herein are made without prejudice to ESN's right to assert any additional or supplemental objections, including any objection to the admissibility at trial of any answers, responses, documents, things or information provided by ESN.

INTERROGATORY NO. 7: State and describe in detail how the written description and any drawing(s) of ESN's Provisional Application No. 60/283,888 support the subject matter claimed in the `519 Patent, including: (i) the specific identification of any and all disclosures(s) in the provisional application for each element of each claim in the `519 Patent; and (ii) the specific identification of any and all disclosure(s) in the provisional application that enable a person skilled in the art to which the invention pertains to make and use the invention. ANSWER: ESN objects to this contention Interrogatory as premature and contrary to the specific agreement of the parties and the Docket Control Order, which sets a date of December 19, 2008 for identification of intrinsic and extrinsic evidence in support of their respective proposed claim constructions. ESN further objects to this Interrogatory as compound and requiring separate and distinct answers to multiple sub-parts. ESN objects to this Interrogatory as premature since it calls for expert analysis that will be presented in expert reports and expert testimony in due course according to deadlines set forth in the Docket Control Order. ESN further objects to this interrogatory as seeking information that is not relevant to any claim or defense presented in this action since the `519 Patent is presumed to be enabled and it is Cisco's burden to prove lack of enablement by clear and convincing evidence. Cisco has failed to provide any basis for any alleged non-enablement defense and, thus, there are no contentions, facts, analyses or conclusions relating to non-enablement for ESN to rebut. ESN reserves the right to provide rebuttal contentions, facts, analyses and conclusions as the case progresses.

Dated : July 14, 2008 Respectfully submitted, FOR PLAINTIFF ESN, LLC:

Eric M. Albritton Lead Attorney Texas State Bar No. 00790215 ALBRITTON LAW FIRM P.O. Box 2649 Longview, Texas 75606 Telephone [phone] Facsimile [phone] [e-mail] T. John Ward Jr. Texas State Bar No. 00794818 Ward & Smith Law Firm 111 W. Tyler St. Longview, Texas 75601 Telephone [phone] Facsimile [phone] [e-mail]
George P. McAndrews Thomas J. Wimbiscus Peter J. McAndrews Gerald C. Willis

Paul W. McAndrews Matthew N. Allison
McAndrews, Held & Malloy, Ltd. 500 W . Madison Street , 34' Floor Chicago, Illinois 60661 Telephone [phone] Facsimile [phone] pmcandrews @mcandrews - ip.com

CERTIFICATE OF SERVICE

I hereby certify that on the date this proof of service is signed below, I served the foregoing:

ESN. LLC'S ANSWERS TO CISCO'S FIRST SET OF INTERROGATORIES by email and U.S. mail, addressed as follows: Charles K. Verhoeven Quinn Emanuel Urquhart Oliver & Hedges, LLP 50 California St., 22nd Floor
San Francisco, CA 94111 charlesverhoeven(cD,q uinnemanuel. com Victoria F. Maroulis

Quinn Emanuel Urquhart Oliver & Hedges, LLP 555 Twin Dolphin Dr., Suite 560 Redwood Shores, CA 94065 victoriamaroulis (cDquinnemanuel. com Sam Baxter McKool Smith, P.C. 104 E. Houston Street, Suite 300 P.O. Box 0 Marshall, Texas 75670 sb axter(a-)mckoolsmith. com Garrett W. Chambers McKool Smith, P.C. 300 Crescent Court, Suite 1500 Dallas , Texas 75201 g_chambers(a),mckoolsmith. com

Date: July A, 2008

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