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

Filing 187

RESPONSE in Opposition re #185 MOTION for Leave to File Notice of Supplemental Facts regarding #133 Defendants' Motion to Compel Plaintiff to Comply with PR 3-1 and to Extend the Time to Serve Invalidity Contentions MOTION for Leave to File Notice of Supplemental Facts regarding #133 Defendants' Motion to Compel Plaintiff to Comply with PR 3-1 and to Extend the Time to Serve Invalidity Contentions filed by Bedrock Computer Technologies, LLC. (Attachments: #1 Exhibit A, #2 Exhibit A-1, #3 Exhibit A-2, #4 Exhibit A-3)(Cawley, Douglas)

Exhibit A.2

From: To: CC:

Austin Curry Chaikovsky, Yar; Chris Bunt; Lee, John; Evette Pennypacker ([e-mail]); [e-mail]; [e-mail]; Alan Lee Whitehurst (alan. [e-mail]); Marissa Rachel Ducca (marissa. [e-mail]); [e-mail]; [e-mail]; mikejones@potterminton. com; [e-mail]; patrickclutter@potterminton. com; [e-mail]; [e-mail]; rkorn@kilpatrickstockton. com; [e-mail]; tom.davison@alston. com; [e-mail]; [e-mail]; RE: Bedrock Computer Technologies LLC v. Softlayer Technologies, Inc. Case No. 6:09-cv-269 Thursday, February 25, 2010 12:12:40 PM

Subject: Date: Attachments: Yar,

It can't be the case that "Bedrock's request that Defendants produce 'any and all source code that corresponds to the object code that is or has been executing on your clients servers or servers operating under your client's control or direction since 2003' is overly broad, unduly burdensome, and not relevant to the claims or defenses in this case" but also that the defendants "cannot stipulate or make any representations regarding the impact of non-produced source code on this case or agree to restrictions on the use of non-produced source code." The defendants can't have it both ways. Bedrock, in its infringement contentions, identified with particularity the source code that meets the limitations of the patent in suit. The precision that Bedrock provided in its PICs cannot serve as a basis for limiting the production it is entitled to, and you have not given me to any authority saying as much. Rather, in the

Eastern District, not only is Bedrock entitled to everything non-privileged and relevant, but "relevance" is typically given a broad interpretation. Bedrock's request -- that the defendants produce any and all source code that corresponds to the object code that is or has been executing on your clients servers or servers operating under your client's control or direction since 2003 -- is highly relevant to this case, and this is plainly demonstrated by the defendants' unwillingness to stipulate otherwise. Further, I'd be interested to know whether any of the defendants are planning on limiting their respective experts' review of the source code to what is produced to Bedrock and Bedrock's experts. The alternative you propose -- that Bedrock identify any additional Linux code or the code for other software programs that may be operating on Defendants' servers that Bedrock contends should be produced and the basis for its request -- is unworkable for at least two reasons: (i) this would be the equivalent of giving Bedrock a handful of jigsaw puzzle pieces and saying "tell me what other piece you need;" Bedrock would only be able to iteratively request the pieces that match the perimeter; and (ii) this would give the defendants improper insight into the code that Bedrock is reviewing. In sum, Bedrock expects a complete production of source code from each defendant. Bedrock is willing to compromise on a lot of discovery issues to avoid motions to compel, but this is not one of them. Please reconsider your position. Austin Curry

From: Faasisila, Nikole [mailto:[e-mail]] Sent: Wednesday, February 24, 2010 2:58 PM To: Austin Curry Cc: Chaikovsky, Yar; Lee, John; Evette Pennypacker ([e-mail]); [e-mail]; [e-mail]; Alan Lee Whitehurst (alan.whitehurst@alston. com); Marissa Rachel Ducca ([e-mail]); [e-mail]; [e-mail]; [e-mail]; [e-mail]; [e-mail]; [e-mail]; [e-mail]; [e-mail]; [e-mail]; [e-mail];

[e-mail]; [e-mail] Subject: Bedrock Computer Technologies LLC v. Softlayer Technologies, Inc. Case No. 6:09-cv-269 Counsel: Attached please find correspondence of today's date. Regards, Nikole Faasisila McDermott Will & Emery LLP 275 Middlefield Road, Suite 100 Menlo Park, California 94025 [phone] - Direct [phone] - Main [phone] - Fax

******************************************************************************************************************* IRS Circular 230 Disclosure: To comply with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained herein (including any attachments), unless specifically stated otherwise, is not intended or written to be used, and cannot be used, for the purposes of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter herein. ________________________________________________________________________________ This message is a PRIVILEGED AND CONFIDENTIAL communication. This message and all attachments are a private communication sent by a law firm and may be confidential or protected by privilege. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or use of the information contained in or attached to this message is strictly prohibited. Please notify the sender of the delivery error by replying to this message, and then delete it from your system. Thank you. ******************************************************************************************************************* Please visit http://www.mwe.com/ for more information about our Firm.