Mirror Worlds, LLC v. Apple, Inc.

Filing 390

RESPONSE in Opposition re #389 MOTION to Strike the Untimely Supplemental Expert Rebuttal Report of John Levy, Ph.D. Regarding Validity and To Preclude Dr. Levy from Testifying at Trial About His New Opinions filed by Mirror Worlds, LLC. (Attachments: #1 Text of Proposed Order, #2 Affidavit Declaration of Alexander Solo, #3 Exhibit 1, #4 Exhibit 2, #5 Exhibit 3, #6 Exhibit 4)(Solo, Alexander)

Mirror Worlds, LLC v. Apple, Inc.

Doc. 390 Att. 4

Dockets.Justia.com

From: Sent: To: Cc: Subject:

Solo, Alex Tuesday, August 31, 2010 5:41 PM Mirror Worlds MW_v_Apple RE: Outstanding Issues

Christian, We need Apple's answers regarding the following issues as soon as possible: 1) Reduction of Prior Art ­ The Court ordered Apple to reduce its prior art for trial. As of yesterday, Mirror Worlds has reduced its claims for trial, while Apple has given no indication regarding when it intends to provide its reduced list of prior art. Apple's delay is preventing the completion of the supplemental expert report of Dr. Levy mentioned my August 24 e-mail. 2) Stipulation Regarding iPods ­ We have not received Apple's response to our proposed stipulation regarding the iPod Classic and iPod Nano. Mirror Worlds needs to have an agreed-to stipulation or a 30(b)(6) deposition scheduled for a date that is no later than next week. Please let us know Apple's positions. Regards, Alex _____________________________ Alexander Solo Stroock & Stroock & Lavan LLP 180 Maiden Lane New York, NY 10038 Tel: (212) 806 - 6031 Fax: (212) 806 - 9031 _____________________________ This e-mail is intended only for the person or entity to which it is addressed and may contain information that is privileged, confidential or otherwise protected from disclosure. Dissemination, distribution or copying of this e-mail or the information herein by anyone other than the intended recipient is prohibited. If you have received this e-mail in error, please: (1) reply to the sender; (2) destroy this communication, including deletion of all associated files from all individual and network storage devices; and (3) refrain from copying or disseminating this communication by any means whatsoever.
From: Platt, Christian [mailto:[e-mail]] Sent: Friday, August 27, 2010 5:47 PM To: Solo, Alex; Mirror Worlds Cc: MW_v_Apple; Otis Carroll; Deborah Race Subject: RE: Outstanding Issues AlexI'll address each item below:

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1) We will be providing documents from Bud Tribble. Apple offered on several occasions to have Mirror Worlds take Mr. Tribble's deposition during fact discovery. Mirror Worlds knew that Mr. Tribble would testify about Mr. Jobs' e-mails. Mirror Worlds, however, explicitly elected NOT to take his deposition. We understand that Mirror Worlds has changed its mind, but we are unable to make Mr. Tribble available for a deposition at this time. 2) We are considering the counter-proposal and believe that we may be able to reach common ground. Of course, the need for a stipulation may be moot, given Mirror Worlds' admission at the pre-trial conference that the iPods do not include a "stream" as required by all of the claims. We will follow up with you after the parties have briefed the issue of whether the remaining claims require a "stream," as the Court instructed. 3) We will discuss Mirror Worlds' proposal with our client. As we discussed with Otis, our client representative is traveling and we have not had a chance to discuss your proposal. We will get back to you as soon as possible 4) The parties agreement with respect to their own documents is set forth in the Joint Pretrial Order. We reserved rights with respect to all other objections, including hearsay and relevance. Our understanding of the agreement is that if a party wishes to use the other party's documents, that party will not have to establish that those documents are authentic business records. However, the agreement does not extend to a party using its own documents. For example, although Mirror Worlds has agreed that documents from its corporate files are business records as set forth in the Joint Pretrial Order, Apple does not agree that Mirror Worlds can use its own hearsay documents without demonstrating that they are business records (or other hearsay exception). In addition, simply because Apple has agreed that documents from its corporate files are authentic business records, it does not mean that such documents are not objectionable for other grounds, including relevance or double hearsay. 5) We are in disagreement on this issue. We are not available for a meet and confer tomorrow, but may be able to talk on Sunday. If Sunday works, please propose a time. Best regards Christian

From: Solo, Alex [mailto:[e-mail]] Sent: Friday, August 27, 2010 1:22 PM To: Mirror Worlds Cc: MW_v_Apple; Otis Carroll; Deborah Race Subject: RE: Outstanding Issues

Christian, With the trial fast approaching, we need to know Apple's position regarding the following items as soon as possible: 1) We still have not received Dr. Tribble's documents or his availability for deposition. 2) As described in my email below, Apple's proposed stipulation with respect to the iPod Nano and iPod Classic is unsatisfactory, and we need to know Apple's position regarding our counter-proposal. 3) We would like to know Apple's position regarding MWT's offer to concede judgment with respect to the `101 patent, as discussed at the pre-trial conference. 4) At the time that the parties agreed to a global resolution of issues, it was our understanding that Apple was agreeing that ALL of the items that were produced from Apple's records, were authentic business records. Recently, Apple has taken the position that "emails, videos and transcripts that Apple has produced are authentic business records," but that other items produced from Apple's files may not be. We need to know where Apple is drawing the line in order to determine how to proceed. 5) For the reasons we've laid out in earlier e-mails, we disagree with Apple's decision to bring Dr. Baecker to trial. Similarly, we believe that testimony of the inventors related to the late produced art is
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prejudicial. If Apple intends to call Dr. Baecker or any of the inventors of the late produced art, Mirror Worlds will move to exclude their testimony. We are hoping to resolve these issues amicably, but if there's no resolution by September 1, we will be asking the Court for assistance. We are available for a meet and confer tomorrow at 11 AM EST regarding these issues and the foreign sales issue that you identified in your email earlier today. Regards, Alex
_____________________________ Alexander Solo Stroock & Stroock & Lavan LLP 180 Maiden Lane New York, NY 10038 Tel: (212) 806 - 6031 Fax: (212) 806 - 9031 _____________________________ This e-mail is intended only for the person or entity to which it is addressed and may contain information that is privileged, confidential or otherwise protected from disclosure. Dissemination, distribution or copying of this e-mail or the information herein by anyone other than the intended recipient is prohibited. If you have received this e-mail in error, please: (1) reply to the sender; (2) destroy this communication, including deletion of all associated files from all individual and network storage devices; and (3) refrain from copying or disseminating this communication by any means whatsoever. From: Platt, Christian [mailto:[e-mail]] Sent: Wednesday, August 25, 2010 1:04 PM To: Solo, Alex; Mirror Worlds Cc: MW_v_Apple Subject: RE: Outstanding Issues AlexThanks for your e-mail. We are busy today preparing for the pre-trial conference. We are considering your e-mail below (and yesterday's e-mail) and will get back to you. -Christian

From: Solo, Alex [mailto:[e-mail]] Sent: Wednesday, August 25, 2010 6:51 AM To: Mirror Worlds Cc: MW_v_Apple Subject: RE: Outstanding Issues

Christian. Apple's proposed stipulation does not eliminate the need for a 30(b)(6) witness on the software for the iPod Classic and iPod Nano, as well as additional production of the related source code. The previous discussion regarding the stipulation related solely to carving out distinctions between the touchscreen on the iPod Touch and the scroll wheel on the iPod Classic and Nano
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(see, e.g., Alan Soobert email of July 26, 2010 and related in emails in the chain). We, accordingly, propose the following stipulation: Apple stipulates that for the purposes of assessing infringement of claims 16 and 18 of the `427 patent, there are no differences between the iPod Touch and the iPod Classic/Nano, except for the user operation of a touchscreen in the iPod Touch versus a scroll wheel in the iPod Classic and iPod Nano: As we explained previously, if the parties cannot reach agreement on a stipulation, Mirror Worlds will require a 30(b)(6) witness on the iPod Classic and iPod Nano, as well as access to related source code (see my July 23 email). To date, we have neither received documents from Dr. Tribble nor been provided with his availability for deposition. When does Apple expect to produce those documents. Additionally, as we previously noted, Apple's position that Mirror Worlds refused Dr. Tribble's deposition is untenable, as Mirror Worlds only refused his 30(b)(6) designation and Dr. Tribble was never offered in his personal capacity. Please confirm whether you will be providing dates for Dr. Tribble to be deposed in his personal capacity or whether Apple refuses to produce Dr. Tribble. If so, Mirror Worlds will be forced to ask the Court for relief. We would like to confer today on this issue, as well as the issues identified in my email from yesterday. Regards, Alex
_____________________________ Alexander Solo Stroock & Stroock & Lavan LLP 180 Maiden Lane New York, NY 10038 Tel: (212) 806 - 6031 Fax: (212) 806 - 9031 _____________________________ This e-mail is intended only for the person or entity to which it is addressed and may contain information that is privileged, confidential or otherwise protected from disclosure. Dissemination, distribution or copying of this e-mail or the information herein by anyone other than the intended recipient is prohibited. If you have received this e-mail in error, please: (1) reply to the sender; (2) destroy this communication, including deletion of all associated files from all individual and network storage devices; and (3) refrain from copying or disseminating this communication by any means whatsoever.

From: Platt, Christian [mailto:[e-mail]] Sent: Wednesday, August 18, 2010 6:50 PM To: Solo, Alex; Mirror Worlds Cc: MW_v_Apple Subject: RE: Outstanding Issues AlexFollowing up on our call, let me respond to the issues below: 1) Proposed Stipulation on iPod Classic and iPod Nano:
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If the iPod Touch is found to infringe claims 16-19 of the '427 patent, then the accused iPod Classic and Nano also infringe these claims if the following two limitations are also satisfied (either literally or under the doctrine of equivalents, where alleged by Mirror Worlds) by the "click wheel" and the iPod Classic and Nano software, respectively: 1. "...said display facility further displaying a cursor or pointer and responding to a user sliding without clicking the cursor or pointer over a portion of a displayed document representation to display the glance view of the document whose document representation is touched by the cursor or pointer" 2. "...said controlling operating system utilizing subsystems from said another operating system for operations including writing documents to storage media, interrupt handling and input/output" 2) We are in the process of reviewing and producing documents collected from Mr. Tribble. With respect to a deposition of Mr. Tribble, we have already provided our position on that issue -- Mirror Worlds expressly stated that it would not be taking his deposition. With respect to Mr. Bachman, we will not be calling Mr. Bachman as a witness at trial, which resolves his deposition/document issues. 3) As I indicated during our call, we are not opposed to considering a reduction in the prior art references depending on the scope of Mirror Worlds' asserted claims. However, we cannot make that decision in a vacuum. Please let us know when Mirror Worlds will reduce the number of claims at issue. Best regards Christian

From: Solo, Alex [mailto:[e-mail]] Sent: Wednesday, August 18, 2010 12:15 PM To: Mirror Worlds Cc: MW_v_Apple Subject: Outstanding Issues Christian, As the trial date approaches, it is becoming more important for Mirror Worlds to know Apple's position regarding the certain issues that have been outstanding for some time. Although other issues may be outstanding, we need to address the following at your earliest convenience: 1) Stipulation regarding the iPod Classic and iPod Nano. When we last discussed this issue, Apple was going to proposed language. When can we expect it? 2) The production of documents related to Messrs. Tribble and Bachman and their availability for deposition. Please advise as to when we can expect the production and on which dates thereafter each is available to be deposed. 3) Reduction of prior art. When discussing Mirror Worlds potential reduction of claims, we raised the issue of Apple's reduction of prior art. As we mentioned, we are considering voluntarily limiting the number of asserted claims and, despite your pending motion, are still anticipating presenting Apple with a substantially abbreviated list of claims this coming Monday. Is Apple willing to limit the prior art it will rely on?
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Regards, Alex _____________________________ Alexander Solo Stroock & Stroock & Lavan LLP 180 Maiden Lane New York, NY 10038 Tel: (212) 806 - 6031 Fax: (212) 806 - 9031 _____________________________ This e-mail is intended only for the person or entity to which it is addressed and may contain information that is privileged, confidential or otherwise protected from disclosure. Dissemination, distribution or copying of this e-mail or the information herein by anyone other than the intended recipient is prohibited. If you have received this e-mail in error, please: (1) reply to the sender; (2) destroy this communication, including deletion of all associated files from all individual and network storage devices; and (3) refrain from copying or disseminating this communication by any means whatsoever. ================================================================= ===================================================== IRS Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS in Circular 230, we inform you that any tax advice contained in this communication (including any attachment that does not explicitly state otherwise) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. ================================================================= ===================================================== _________________________________________________________ ********************************************************* IRS Circular 230 Disclosure: As required by U.S. Treasury Regulations governing tax practice, you are hereby advised that any written tax advice contained herein was not written or intended to be used (and cannot be used) by any taxpayer for the purpose of avoiding penalties that may be imposed under the U.S. Internal Revenue Code. ********************************************************* This message is sent by a law firm and may contain information that is privileged or confidential. If you received this transmission in error, please notify the sender by reply email and delete the message and any attachments. For additional information, please visit our website at www.paulhastings.com. ============================================================================== ======================================== IRS Circular 230
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