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

Filing 842

Opposed MOTION for Attorney Fees Yahoo!'s Motion to Declare this an Exceptional Case and for Attorneys' Fees and Costs Pursuant to 35 USC Sec. 285 by Yahoo! Inc.. (Attachments: #1 Affidavit B. James Decl., #2 Exhibit 1, #3 Exhibit 2, #4 Exhibit 3, #5 Exhibit 4, #6 Exhibit 5, #7 Exhibit 6, #8 Exhibit 7, #9 Exhibit 8, #10 Exhibit 9, #11 Exhibit 10, #12 Exhibit 11, #13 Exhibit 12, #14 Exhibit 13, #15 Exhibit 14, #16 Exhibit 15, #17 Exhibit 16, #18 Exhibit 17, #19 Exhibit 18, #20 Exhibit 19, #21 Exhibit 20, #22 Exhibit 21, #23 Exhibit 22, #24 Exhibit 23, #25 Exhibit 24, #26 Exhibit 25)(Chaikovsky, Yar) (Additional attachment(s) added on 6/7/2011: #27 Text of Proposed Order) (mll, ).

EXHIBIT 24

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.

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CASE NO. 6:09-cv-269-LED
Jury Trial Demanded

PLAINTIFF BEDROCK COMPUTER TECHNOLOGIES LLC’S OBJECTIONS AND
RESPONSES TO YAHOO! INC.’S FOURTH SET OF INTERROGATORIES (NO. 8)

TO:

Defendant Yahoo! Inc., by and through its attorney of record, Yar R.
Chaikovsky, MCDERMOTT WILL & EMERY LLP, 275 Middlefield Road, Suite
100, Menlo Park, California 94025.

Pursuant to Federal Rules of Civil Procedure 33, Plaintiff Bedrock Computer
Technologies LLC (“Plaintiff” or “Bedrock”) provides the following objections and responses to
Yahoo! Inc.’s (“Yahoo”) Third Set of Interrogatories (No. 8).
PRELIMINARY STATEMENT
1.

Bedrock incorporates by reference each and every general objection set forth

below into each specific response. The failure to include any general objection in any specific
response shall not be interpreted as a waiver of any general objection to that response.
2.

By responding to Yahoo’s interrogatories, Bedrock does not waive any objection

that may be applicable to: (a) the use, for any purpose, by Yahoo of any information or

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documents given in response to Yahoo’s interrogatories; or (b) the admissibility, relevance, or
materiality of any of the information or documents to any issue in this case.
3.

No incidental or implied admissions are intended by the responses herein. The

fact that Bedrock has answered or objected to any interrogatory should not be taken as an
admission that Bedrock accepts or admits the existence of any “fact” set forth or assumed by
such interrogatory.
4.

Bedrock’s responses to Yahoo’s interrogatories are made to the best of Bedrock’s

present knowledge, information, and belief. Bedrock reserves the right to supplement and amend
these responses should future investigation indicate that such supplementation or amendment is
necessary. Bedrock reserves the right to make any use of, or introduce at any hearing or trial,
information or documents that are responsive to Yahoo’s interrogatories, but discovered
subsequent to Bedrock’s service of these responses, including, but not limited to, any
information or documents obtained in discovery herein.
GENERAL OBJECTIONS
1.

Bedrock objects to each interrogatory to the extent that it seeks information

already in Yahoo’s possession, a matter of public record or otherwise equally available to any
Defendant.
2.

Bedrock objects to each interrogatory to the extent that it seeks the identification

of “all,” “every,” “any,” and “each” entity, person, or document that refers to a particular subject.
Bedrock will comply with the Federal Rules and the Local Rules and will use reasonable
diligence to identify responsive persons or documents.
3.

Bedrock’s responses herein, and its disclosure of information pursuant to these

responses, do not in any way constitute an adoption of Yahoo’s purported definitions of words

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4.

Bedrock objects to each and every interrogatory to the extent that it purports,

through Yahoo’s definitions, instructions to the extent that they are inconsistent with, or not
authorized by, the Federal Rules of Civil Procedure, the Local Rules of the Eastern District of
Texas, or the Court’s Patent Rules and discovery orders.
5.

Bedrock objects to the extent that the interrogatories call for information

protected by the attorney-client privilege, the attorney work product doctrine or any other
applicable doctrine, privilege or immunity.

Any disclosure of privileged information is

inadvertent and should be deemed to have no legal effect or consequence, and Bedrock does not
waive any privilege upon such inadvertent disclosure.
6.

Bedrock objects to each and every interrogatory to the extent that it seeks

information that is cumulative or duplicative of information, disclosures, or discovery already
provided by Bedrock.
7.

Bedrock objects to the inclusion of “Bedrock’s affiliates, parents, divisions, joint

ventures, assigns, predecessors and successors in interest” and “former employees, counsel,
agents, consultants, representatives, and any other person acting on behalf of the foregoing” in
the definitions of “Bedrock,” “you,” “your,” and “plaintiff” to the extent that the interrogatories
using these definitions are requesting information that is not in the possession, custody, or

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8.

Bedrock objects to Yahoo’s definitions of “reflect,” “reflecting,” “refers to,”

relating to,” “referring to,” “identify,” “identity,” “identity,” and “identity,” on the grounds that
they are vague, ambiguous, overly broad, and as used in the interrogatories, make the
interrogatories unduly burdensome.
9.

Bedrock objects to the Definitions of “identify,” and related terms and “relates

to,” and related terms to the extent that they purport to require Bedrock to take action or to
provide information not required by, or which exceeds the scope of, the Federal Rules of Civil
Procedure.
10.

Bedrock objects to the extent that the interrogatories seek information of third

parties with whom Bedrock may have entered into non-disclosure or confidentiality agreements
or other agreements having privacy, confidentiality, or non-disclosure provisions, which prohibit
the disclosure by Bedrock of the third party’s information.
11.

Bedrock objects to providing responses to each interrogatory where the requested

information may be derived or ascertained from documents that have been or are being
produced.
12.

Bedrock objects to each and every interrogatory to the extent that it seeks

information that is properly the subject of expert testimony in advance of the Federal Rules of
Civil Procedure, the Local Rules of the Eastern District of Texas, the Court’s Patent Rules and
discovery orders, or the parties’ discovery stipulations.

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13.

Bedrock objects to the extent the interrogatories seek information that is not

relevant to any claim or defense in this case, is not reasonably calculated to lead to the discovery
of admissible evidence, or is otherwise not discoverable under Fed. R. Civ. P. 26(a).
14.

Bedrock notifies the Defendants that it will object to interrogatories containing

multiple subparts that together exceed the total number of interrogatories that the Defendants are
allowed to propound pursuant to an order of the Court or the Federal Rules of Civil Procedure.
For purposes of this objection, Bedrock will count interrogatory subparts as part of one
interrogatory for the purpose of numerically limiting interrogatories to the extent that such
subparts are logically or factually subsumed within and necessarily related to the primary
question. To the extent any subsequent question can stand alone or is independent of the first
question, such subsequent question is a discrete interrogatory. Accordingly, Bedrock will count
discrete or separate questions as separate interrogatories, notwithstanding they are joined by a
conjunctive word and may be related. Bedrock will endeavor, however, to treat genuine subparts
as subparts and will not count such genuine subparts as separate interrogatories. For purposes of
this objection, a subpart inquiring on the same topic as the interrogatory therefore will not itself
qualify as a separately counted interrogatory, but when the interrogatory subpart introduces a
new topic that is in a distinct field of inquiry, the subpart then assumes separate interrogatory
status for the purpose of counting. See Orion IP, LLC v. Staples, Inc., et al., No. 2:04-CV-297,
at *1 (E.D. Tex July 7, 2005) (Dkt. No. 171).

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OBJECTIONS AND RESPONSES TO SPECIFIC INTERROGATORIES
INTERROGATORY NO. 8:
For each asserted claim of the ‘120 patent, explain each and every basis for how the
claim, when implemented, has at anytime actually prevented, protected against, defeated or in
any way hindered a denial of service attack. The explanation should include the identification of
each and every instance in which the implementation has actually prevented, protected against,
defeated or in any way hindered a denial of service attack, the witnesses upon which Bedrock
relies to support this contention, their anticipated testimony, the specific portions of the
documents or other information upon which the witnesses or Bedrock relies, and when each such
denial of service attack occurred.
ANSWER:
In addition to the general objections, Bedrock specifically objects to this interrogatory to
the extent that it seeks the production, identification, or disclosure of information protected by
the attorney-client privilege, work product doctrine, or any other applicable privilege or doctrine.
Bedrock further objects that the information to the extent that it seeks the disclosure of
information that is properly the subject of expert testimony; such information will be disclosed
consistent with the Court’s Docket Control Order and the deadline for burden expert reports.
Bedrock further objects to this interrogatory on the grounds that the interrogatory is
argumentative. Bedrock objects to the interrogatory as vague and ambiguous as to the terms
“actually prevented, protected against, defeated, or in any way hindered.” Bedrock also objects
to this interrogatory as multiparted in seeking a separate response for every asserted claim, in
asking for relevant documents, in asking for potential witnesses and their anticipated testimony,

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and in seeking all facts related to actual denial of service attacks. Bedrock also objects to this
interrogatory as premature in asking for witnesses and anticipated testimony.
Subject to the following general and specific objections, Bedrock responds as follows.
Denial of service attacks have long been a challenge for internet companies such as Yahoo. On
February 7, 2000, a fifteen year old boy launched a denial of service attack against Yahoo that
shut down Yahoo for close to an hour. Analysts have estimated that the damage from that attack
at $1.2 billion by estimating revenue losses at the affected web sites, losses in market
capitalization, and the amount that will be spent on upgrading security infrastructures as a result
of the attacks. As explained in Bedrock’s responses to Yahoo’s interrogatories 7 and 8, which
Bedrock hereby incorporates by reference, the denial of service threat to Yahoo continued
because Yahoo’s pre-infringing Linux servers were susceptible to a denial of service attack that
effectively disables a server by frequently triggering the single-purpose garbage collection
routine. The testing done by Dave Miller of the juno-z.101f.c code on a pre-infringing Linux
server are instances of actual denial of service attacks. The infringing modifications to the Linux
code and subsequent testing of that code with the juno-z.101f.c attack module are actual
instances in which the claims of the ’120 patent have prevented, protected against, defeated, and
hindered denial of service attacks. Further, Yahoo’s ordinary network traffic, which is so
voluminous and diverse that it is comparable to traffic generated by a juno-z.101f.c denial of
service attack, is a constant demonstration of how the infringing code that is operating on
Yahoo’s servers mitigate and prevent what would otherwise be significant system degradation on
Yahoo’s servers but for Yahoo’s infringement.

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Date: December 3, 2010.

Respectfully submitted,
/s/ Jason D. Cassady
Sam F. Baxter
Texas Bar No. 01938000
McKOOL SMITH, P.C.
Email: [e-mail]
104 E. Houston Street, Suite 300
Marshall, Texas 75670
Telephone: [phone]
Facsimile: [phone]
Douglas A. Cawley, Lead Attorney
Texas Bar No. 04035500
Email: [e-mail]
Theodore Stevenson, III
Texas Bar No. 19196650
Email: [e-mail]
Jason D. Cassady
Texas State Bar No. 24045625
Email: [e-mail]
J. Austin Curry
Texas Bar No. 24059636
Email: [e-mail]
McKOOL SMITH, P.C.
300 Crescent Court, Suite 1500
Dallas, Texas 75201
Telephone: [phone]
Facsimile: 214-978-4044
Robert M. Parker
Texas Bar No. 15498000
E-mail: [e-mail]
Robert Christopher Bunt
Texas Bar No. 00787165
E-mail: [e-mail]
PARKER, BUNT & AINSWORTH, P.C.
100 E. Ferguson, Suite 1114
Tyler, Texas 75702
Telephone: [phone]
Facsimile: 903-533-9687
ATTORNEYS FOR PLAINTIFF
BEDROCK COMPUTER
TECHNOLOGIES LLC

PLAINTIFF BEDROCK COMPUTER TECHNOLOGIES LLC’S OBJECTIONS
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CERTIFICATE OF SERVICE
The undersigned certifies that a true and correct copy of the foregoing document was
served on counsel of record via email on December 3, 2010.
/s/ Jason D. Cassady
Jason D. Cassady

PLAINTIFF BEDROCK COMPUTER TECHNOLOGIES LLC’S OBJECTIONS
AND RESPONSES TO YAHOO! INC.’S FOURTH SET OF INTERROGATORIES (NO. 8)
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