Bedrock Computer Technologies, LLC v. Softlayer Technologies, Inc. et al

Filing 136

RESPONSE in Opposition re #133 MOTION to Compel Plaintiff to Comply with Patent Rule 3-1 and to Extend the Time to Serve Invalidity Contentions filed by Bedrock Computer Technologies, LLC. (Attachments: #1 Affidavit Jonathan R. Yim, #2 Exhibit A, #3 Exhibit B, #4 Exhibit C, #5 Exhibit D)(Cawley, Douglas)

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TYLER DIVISION BEDROCK COMPUTER TECHNOLOGIES LLC, Plaintiff, v. SOFTLAYER TECHNOLOGIES, INC., et al. Defendants. CASE NO. 6:09-cv-269 Jury Trial Demanded BEDROCK COMPUTER TECHNOLOGIES LLC'S FIRST SET OF INTERROGATORIES (NOS. 1-3) TO GOOGLE, INC. To: Defendant Google, Inc., by and through its attorney of record, Michael E. Jones, Esq., Potter Minton PC, 110 North College, Suite 500, Tyler, Texas 75702. Pursuant to Federal Rules of Civil Procedure 26 and 33, Plaintiff Bedrock Computer Technologies LLC ("Plaintiff") serves its First Set of Interrogatories (Nos. 1-3) on Google, Inc.. A written response to the Interrogatories is due within thirty (30) days of service. Dallas 291037v1 DEFINITIONS 1. The term "Google, Inc." shall mean or refer to Defendant Google, Inc. and shall include its agents, representatives, attorneys or anyone authorized or purportedly authorized to act on their behalf. 2. "You" and "your" refers to Google, Inc. including without limitation all of its corporate locations, and all predecessors, subsidiaries, parents, and affiliates and all past or present directors, officers, agents, representatives, and employees. 3. "Bedrock" means Bedrock Computer Technologies LLC, together with all past and present parents, controlled and affiliated companies, subsidiaries and subdivisions of any of the foregoing, and all actual or alleged predecessors and successors to the foregoing, and all past and present agents, directors, principals, officers, employees, representatives, consultants, attorneys, and anyone acting on behalf of the foregoing. 4. The term "party" shall mean any natural person, corporation, partnership, association, joint venture, government body, or other legal entity, including Plaintiff and Defendant Google, Inc.. 5. The term "third party" shall mean any natural person, corporation, partnership, association, joint venture, government body, or other legal entity other than the Plaintiff and Defendant Google, Inc.. 6. No. 5,893,120. 7. The term "documents" or "document" shall have the same broad meaning as The phrase "the '120 patent" or "the patent-in-suit" refers to United States Patent defined in Rule 34 of the Fed. R. Civ. P., include, without limitation, writings, drawings, graphs, charts, photographs, phonorecords, and other data compilations from which information can be Dallas 291037v1 obtained or translated, if necessary, by Google, Inc. through detection devices into reasonably usable form. "Document" or "documents" also include all drafts and copies that are not identical to the original in any way whatsoever, including copies or drafts with notations on the front or back of any of the pages thereof of any written, recorded or graphic matter, including, but not limited to, any notebook, book, pamphlet, periodical, letter, correspondence, telegram, contract, purchase order, bill, invoice, estimate, report, appraisal, memorandum, docket, diary, calendar, interoffice or intraoffice communication, specification, record, study, work sheet, desk calendar, graph, computer run, computer diskette, computer tape, print-out, chart, check register, canceled check, blue print, income tax return, receipt, deed, trust agreement, note, budget, telephone log or record, statement of account, ledger, journal, financial statement, map, check, tape recording, transcription or any other memorial of any conversation, meeting, conference or telephone call, however produced or reproduced, any other form of notation of events or intentions, and any other printed, written, or reproduced matter. To the extent that information requested is stored as computer data or computer-readable data, "documents" shall mean electronic, printed or "hard copy" versions of such data. 8. The term "all documents" shall include each and every document that refers, reflects, or relates, directly or indirectly, in whole or in part, to the subject matters described in a given document request. Where originals are not available, authentic copies of such documents may be produced; but, if a document has been prepared in separate copies, or additional copies have been made and the copies are not identical (or which, by reason of subsequent modification of a copy or by the addition of notations, are no longer identical), each non-identical copy is a separate document and should be identified or produced. 9. The terms "relate to" or "relating to" shall mean constituting, discussing, Dallas 291037v1 mentioning, containing, embodying, reflecting, identifying, incorporating, referring to, dealing with, or pertaining to in any way. 10. The terms "concerning," "referring" and "relating to" mean analyzing, containing, dealing with, constituting, defining, describing, discussing, embodying, evidencing, explaining, identifying, mentioning, reflecting, setting forth, showing, stating, summarizing, supporting, or in any way pertaining to the subject matter of the request. 11. The terms "communication" or "communications" shall include the disclosure, transfer, or exchange of information by every manner or means, whether orally, by document, face-to-face, by telephone, mail, e-mail, personal delivery, or otherwise. 12. The terms "infringe" and "infringement" refer to direct infringement, contributory infringement, or active inducement of infringement, any of which can be either literal or under the doctrine of equivalents. 13. The singular of all definitions and terms also includes the plural of such definitions and terms whenever such a change would result in any additional Document being responsive to a request or any additional persons, business entities, articles or products, or communications being identified. 14. "Identify," or "identity" when used with reference to: (a) an individual person, means to state his full name, present or last known employer, job title, present or last known residence, address and telephone number, and present or last known business addresses and telephone number, and any other information which would establish his/her relationship to you; and Dallas 291037v1 (b) a business entity, means to state the full name and address of the entity and the names and positions of the individual or individuals connected with such entity who have knowledge of the information requested. (c) a document, means to give, to the extent known, the following information: (i) the type of document; (ii) the general subject matter of the document; (iii) the date of the document; (iv) the authors, addressees, and recipients of the document; (v) the location of the document; (vi) any Bates numbering associated with the document; (vii) the identity of the person who has custody of the document; and (viii) whether the document has been destroyed and, if so, the date of its destruction, the reason for its destruction, and the identity of the person who destroyed it. 15. "Accused Version of Linux" means software based on Linux kernel version 2.4.22.x, 2.4.23.x, 2.4.24.x, 2.4.25.x, 2.4.26.x, 2.4.27.x, 2.4.28.x, 2.4.29.x, 2.4.30.x, 2.4.31.x, 2.4.32.x, 2.4.33.x, 2.4.37.x, 2.6.0.x, 2.6.1.x, 2.6.2.x, 2.6.3.x, 2.6.4.x, 2.6.5.x, 2.6.6.x, 2.6.7.x, 2.6.8.x, 2.6.9.x, 2.6.10.x, 2.6.11.x, 2.6.12.x, 2.6.13.x, 2.6.14.x, 2.6.15.x, 2.6.16.x, 2.6.17.x, 2.6.18.x, 2.6.19.x, 2.6.20.x, 2.6.21.x, 2.6.22.x, 2.6.23.x, 2.6.24.x, 2.6.25.x, 2.6.26.x, 2.6.27.x, 2.6.28.x, 2.6.29.x, 2.6.30.x, or 2.6.31.x. 16. "Modification" in Interrogatory 3 means any difference between the code within of the Accused Version of Linux executing on a server in your possession or control and the code within of the corresponding version of the Linux kernel as archived at http://www.kernel.org/, but only with respect to the code within /net/ipv4 (including its subdirectories) and /include/net (including its subdirectories). For example, if you possessed or controlled a server that operates, executes, or runs software based on Linux kernel version 2.4.22, the Modifications would be all of the differences between that code and the code of the Dallas 291037v1 Linux kernel for version 2.4.22, which can be found at http://www.kernel.org/pub/linux/kernel/v2.4/, but only with respect to the code within /net/ipv4 (including its subdirectories) and /include/net (including its subdirectories). INSTRUCTIONS 1. The interrogatories must be answered fully in writing in accordance with Rules 33 and 11 of the Federal Rules of Civil Procedure. 2. In the event any information is withheld on a claim of attorney-client privilege, attorney work-product immunity, or any other privilege from disclosure, please provide sufficient detail regarding the nature of the information, its source, the general subject matter, and the names and addresses of all persons to whom that information was disclosed, and a statement of the grounds for refusal to answer the interrogatories, such as would enable an assessment of the applicability of the privilege or protection. 3. The interrogatories call for not only your knowledge, but also all information that is available to you by reasonable inquiry and due diligence, including inquiry of your directors, officers, managing agents, representatives, and attorneys. 4. If you cannot respond to the interrogatories fully, after a diligent attempt to obtain the requested information, answer the interrogatories to the extent possible, specifying which portion you are able to answer, and provide whatever information you have regarding the unanswered portion. 5. If, in responding to the following interrogatories, or with respect to any definition or instruction applicable hereto, you claim ambiguity in interpreting the interrogatories, definition or instruction, each such claim should not be utilized by you as a basis for refusing to Dallas 291037v1 respond, but should be set forth as part of your response regarding the language deemed to be ambiguous and the interpretation chosen or used by you in responding to the interrogatories. 6. In the event you claim that the interrogatories are overbroad, you are to respond to that portion of the request believed to be unobjectionable and specifically identify that aspect of the interrogatories that you believe is overbroad. 7. If the interrogatories are silent as to the time period for which a response is sought, please respond by providing all information, regardless of time. 8. The definition of each defined term herein shall be used regardless of whether or not the term is capitalized. 9. Google, Inc. is advised that this discovery request is continuing and require further and supplemental responses by Google, Inc., in accordance with Rule 26(e) of the Federal Rules of Civil Procedure, as and whenever Google, Inc. acquires, makes or discovers additional responsive information, between the time of initial response and the conclusion of the trial of this action. INTERROGATORIES INTERROGATORY NO. 1: Separately for each year since 2003, identify the Accused Version(s) of Linux that were/was installed during that year on a server in your possession or control and, separately for each Accused Version of Linux within each year, the number of servers on which that Accused Version of Linux was installed. If, during a particular year, different Accused Versions of Linux were installed on a particular server in your possession or control, your response should not double-count that one server across multiple Accused Versions of Linux but instead should count Dallas 291037v1 that server only once for the chronologically latest Accused Version of Linux that was installed on that server during that year. Example: Year 2003 Version Linux version 2.4.22 Linux version 2.4.23 Linux version 2.4.22 Linux version 2.4.23 Number of Installations 100 servers 50 servers 25 servers 100 servers 2004 ... ANSWER: INTERROGATORY NO. 2: Separately for each year since 2003, identify the Accused Version(s) of Linux that were/was operating, executing, in service, or running during that year on a server in your possession or control and, separately for each Accused Version of Linux within each year, the number of servers on which that Accused Version of Linux was operating, executing, in service, or running. If, during a particular year, different Accused Versions of Linux were operating, executing, in service, or running on a particular server in your possession or control, your response should not double-count that one server across multiple Accused Versions of Linux but instead should count that server only once for the chronologically latest Accused Version of Linux that was operating, executing, in service, or running on that server during that year. Example: Year 2003 Version Linux version 2.4.22 Linux version 2.4.23 Linux version 2.4.22 Linux version 2.4.23 Number of Operating Servers 1000 servers 500 servers 250 servers 1000 servers 2004 ... Dallas 291037v1 ANSWER: INTERROGATORY NO. 3: For each Accused Version of Linux that was/is operating, executing, in service, or running on a server in your possession or control since 2003, describe all Modifications. For each Modification, your description should include: (i) (ii) (iii) (iv) (v) some way to identify the Modification; the nature of the Modification (i.e., whether the modification is/was an addition, a change, or a deletion); the version(s) of the Linux kernel that were/are modified by the Modification; the file(s) of the Linux kernel (identified by file name) that were/are modified by the Modification; separately for each year since 2003, the number of servers in your possession or control in which the Modification was/is operating, executing, in service, or running; and persons with knowledge related to the Modification. (vi) If, during a particular year, a Modification replaced another Modification on a server in your possession or control that was/is operating, executing, in service, or running, your response should only count that server for the chronologically latest Modification that was operating, executing, in service, or running on that server during that year. Example: Modification route1.c Effect Change to route.c of Official Linux Kernel version 2.4.22; John Doe has knowledge related to this Modification Change to route.c of Official Linux Kernel version 2.4.22; John Doe has knowledge related to this Modification Number of Servers by Year 2003 - 100 servers 2004 - 200 servers 2005 - 100 servers route2.c 2003 - 50 servers 2004 - 200 servers 2005 - 300 servers 2006 - 400 servers ... Dallas 291037v1 ANSWER: Dallas 291037v1 DATED: November 20, 2009 Respectfully submitted, McKOOL SMITH, P.C. _/s/ Sam F. Baxter_________ Sam F. Baxter, Lead Attorney Texas Bar No. 01938000 McKOOL SMITH, P.C. sbaxter@mckoolsmith.com 104 E. Houston Street, Suite 300 P.O. Box 0 Marshall, Texas 75670 Telephone: (903) 923-9000 Facsimile: (903) 923-9099 Douglas A. Cawley Texas Bar No. 04035500 dcawley@mckoolsmith.com Theodore Stevenson, III Texas Bar No. 19196650 tstevenson@mckoolsmith.com J. Austin Curry Texas Bar No. 24059636 acurry@mckoolsmith.com McKOOL SMITH, P.C. 300 Crescent Court, Suite 1500 Dallas, Texas 75201 Telephone: 214-978-4000 Facsimile: 214-978-4044 Robert M. Parker Texas Bar No. 15498000 Robert Christopher Bunt Texas Bar No. 00787165 PARKER, BUNT & AINSWORTH, P.C. 100 E. Ferguson, Suite 1114 Tyler, Texas 75702 Telephone: 903-531-3535 Facsimile: 903-533-9687 E-mail: rmparker@pbatyler.com E-mail: rcbunt@pbatyler.com ATTORNEYS FOR PLAINTIFF BEDROCK COMPUTER TECHNOLOGIES LLC Dallas 291037v1 CERTIFICATE OF SERVICE The undersigned certifies that the foregoing document was served via electronic mail to Michael E. Jones, who is listed as counsel for Google, Inc. in this matter. /s/ Austin Curry Austin Curry Dallas 291037v1

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