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

Filing 763

RESPONSE in Opposition re #756 SEALED PATENT MOTION TO PRECLUDE RELIANCE ON DOCUMENTS AND FACTS RELATED TO PERFORMANCE TESTING PRODUCED BY YAHOO AND SOFTLAYER AFTER CLOSE OF DISCOVERY filed by Yahoo! Inc.. (Attachments: #1 Affidavit Declaration of B. James, #2 Exhibit 1)(Chaikovsky, Yar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TEXAS
TYLER DIVISION
BEDROCK COMPUTER
TECHNOLOGIES LLC,
Plaintiff,
v.
SOFTLAYER TECHNOLOGIES, INC., et
al.,
Defendants.

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CASE NO. 6:09–CV–00269
Hon. Leonard E. Davis

JURY TRIAL DEMANDED

YAHOO!’S RESPONSE IN OPPOSITION TO BEDROCK’S MOTION TO
PRECLUDE RELIANCE ON DOCUMENTS AND FACTS RELATED TO
PERFORMANCE TESTING PRODUCED BY YAHOO!
AFTER CLOSE OF DISCOVERY
Defendant Yahoo! Inc. (“Yahoo!”) files this response in opposition to Bedrock’s Motion
to Preclude Reliance on Documents and Facts Related to Performance Testing Produced by
Yahoo! After Close of Discovery. Dkt. No. 756.
I.

INTRODUCTION AND LEGAL BACKGROUND
Bedrock seeks by its motion to prevent Yahoo! from fairly and legitimately

supplementing its discovery pursuant to Rule 26(e) of the Federal Rules of Civil Procedure.
During the deposition of Bedrock’s expert, Dr. Mark Jones, Yahoo! learned that Dr. Jones is
basing his analysis of Yahoo!’s total network traffic on a post on a public website regarding
Yahoo! Traffic Servers (YTS). BTEX0752445. In response to this new information, Yahoo!
produced two pages of charts and information regarding its YTS servers, showing that Dr.

Jones’s interpretation of the traffic figures in the public posts about YTS is incorrect. Dkt. No.
756, Exh. L.
Yahoo!’s production in direct response to Bedrock’s incorrect expert testimony is
legitimate and proper. If Dr. Jones attempts to testify as to his incorrect interpretation of YTS
traffic based on the public web posts, Yahoo! should be permitted to cross-examine him using
actual traffic data that has been provided to Bedrock. Therefore, Bedrock’s motion to preclude
reliance on those documents should be denied.
II.

ARGUMENT
A.

Yahoo! Has Diligently Supplemented Its Production in Response to
Bedrock’s Overbroad and Vague Discovery Requests

Despite Bedrock’s claims that its discovery requests were specific to YTS documents,
that simply is not the case. Bedrock’s initial document request cited in its motion requested
“[a]ll Documents relating to the quality, value, usability, performance, demand, or benefits of the
Accused Instrumentalities.” Dkt. No. 756 at ¶ 31. There is absolutely no mention of traffic data
whatsoever in this request. Yahoo! properly objected to this request as overly broad, but tried to
produce relevant and responsive documents. Bedrock never specifically requested documents
related to YTS.1
Bedrock further cites to its 30(b)(6) Notice as evidence of its diligence. Dkt. No. 756 at 1
n. 2. Bedrock requested testimony on the “design, use, function, operation, structure, code
dimensions, manufacturing, and processing specifications” of Yahoo!’s accused servers. Id.; see
also Dkt. No. 756, Exh. D at 7, Topic 1. Again, there is absolutely no mention of traffic data
whatsoever in this request. Bedrock’s own exhibits show both that Yahoo! objected to this topic

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Bedrock also notes Topic 53 of its Apr. 30, 2010 letter, which asks for documents “evidencing any testing of any
Accused Version of Linux . . . .” Dkt. 756 at 1 n. 1. This request does not request Yahoo! traffic data.

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as overbroad, and tried over several months to meet and confer with Bedrock regarding the scope
and specificity of this topic. Dkt. No. 756, Exh. H, esp. email of Chris Bright dated on Nov. 15,
2010. Nonetheless, Yahoo! did produce a witness on Topic 1, as requested. Dkt. No. 756, Exh. I
at 1.
Finally, Bedrock argues that the YTS documents were encompassed by its Interrogatories
15-17. Id. at 1 n. 3. Again, Bedrock glosses over the fact that Yahoo! responded appropriately
to the discovery as written. The requests themselves are not directed specifically to YTS.
Yahoo! responded with estimated traffic figures for its typical traffic load. Id., Exh. J at 12-16.
Upon later learning that Bedrock was specifically interested in the YTS servers, Yahoo! properly
supplemented pursuant to Fed. R. Civ. P. 26(e).
B.

Yahoo!’s Document Production is Proper for Cross-Examination of Dr.
Mark Jones

In his deposition on February 9-10, 2011, Bedrock’s expert, Dr. Jones, stated that his
calculations regarding Yahoo!’s network were specifically based on information related to the
Yahoo Traffic Servers. James Decl. Exh. 1, Jones Depo. Tr. at 340:12-343:6.
In light of this new information, and Dr. Jones’s incorrect interpretation of those public
web posts, Yahoo! properly supplemented its document production with actual YTS traffic
figures on March. 11, 2011. This supplementation is directly related to the new information
learned in discovery and is proper under Fed. R. Civ. P. 26(e)(1)(A). If Dr. Jones testifies to his
incorrect interpretation of the public web posts regarding YTS, Yahoo! should be permitted to
cross-examine Dr. Jones using the actual YTS traffic data.
Bedrock protests that this discovery is prejudicial because it is not timely and is
“voluminous.”

This statement is incorrect.

The YTS traffic data was timely provided in

response to Yahoo!’s awareness of Dr. Jones’s opinions. It was provided more than 1 month

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before trial, and consists of 2 pages. There is no prejudice to Bedrock. By contrast, it would be
highly prejudicial to Yahoo! to allow Dr. Jones to incorrectly testify regarding Yahoo!’s network
traffic data without permitting Yahoo! to cross-examine Dr. Jones using accurate YTS traffic
data.
III.

CONCLUSION
For all the reasons given above, Yahoo! respectfully requests that the Court deny

Bedrock’s Motion to Preclude Reliance on Documents and Facts Related to Performance Testing
Produced by Yahoo! After Close of Discovery.

Dated: April 24, 2011

/s/ Yar. R. Chaikovsky
Fay E. Morisseau (Texas Bar No. 14460750)
[e-mail]
John C. Low (Texas Bar No. 24050960)
[e-mail]
MCDERMOTT WILL & EMERY LLP
1000 Louisiana, Suite 1300
Houston, TX 77002
Telephone: [phone]
Facsimile: 713.739.7592
Yar R. Chaikovsky
[e-mail]
Bryan James
[e-mail]
MCDERMOTT WILL & EMERY LLP
275 Middlefield Rd., Suite 100
Menlo Park, CA 94025
Telephone: [phone]
Facsimile: 650. 815.7401
Natalie A. Bennett
[e-mail]
MCDERMOTT WILL & EMERY LLP
227 West Monroe
Chicago, IL 60614
Tel: [phone]
Fax: [phone]

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Jennifer Doan
Texas Bar No. 08809050
[e-mail]
J. Scott Andrews
Texas Bar No. 24064823
[e-mail]
HALTOM & DOAN
Crown Executive Center, Suite 100
6500 Summerhill Rd.
Texarkana, Texas 75503
Tel: [phone]
Fax: [phone]
Attorneys for Defendant Yahoo! Inc.

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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on April 24, 2011, all counsel of record for Plaintiff who have
or are deemed to have consented to electronic service are being served with a copy of this
document via electronic mail.

/s/ Yar R. Chaikovsky
Yar R. Chaikovsky

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