Eolas Technologies Incorporated v. Adobe Systems Incorporated et al

Filing 1050

MOTION FOR LEAVE TO SUPPLEMENT THEIR P.R. 3-1 INFRINGEMENT CONTENTIONS WITH RESPECT TO FRITO-LAY, INC.'S HAPPINESS.LAYS.COM by Eolas Technologies Incorporated. (Attachments: # 1 Declaration of Thomas Fasone III, # 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 Text of Proposed Order)(McKool, Mike)

EXHIBIT 4

Page 1 of 8
From: Tom Fasone III
Sent: Wednesday, September 28, 2011 12:15 PM
To: [e-mail]
Cc: Eolas; John B. Campbell; Matt Rappaport; Josh Budwin; Don Gaiser; Stefano Milito; Vicki Merideth;
[e-mail]; [e-mail]; [e-mail];
[e-mail]; [e-mail]; Bob Kramer
Subject: RE: Eolas/Frito-Lay: Discovery Issues
Attachments: Staples/Frito-Lay: Document Production and Custodial Documents
Jeffrey
In an effort to facilitate an efficient and effective informal meet and confer between the parties within
the next few days, we have considered the points made in your email of Tuesday and provide the
following responses:
(1) happiness.lays.com Eolas believes that the language of its PICs and the definitions set forth in
its discovery mechanisms served to date cover "happiness.lays.com"; however, Eolas is
certainly willing to discuss Frito-Lay's concerns during our meet and confer. Eolas plans to amend
its most recent set of interrogatories and most recent 30(b)(6) notice to correct the clerical error such
that "happiness.fritolay.com" is replaced with "happiness.lays.com" and will re-serve this discovery on
Frito-Lay today. Although Eolas does not believe that it is necessary to do so, it will consider a
request from Frito-Lay to amend the prior discovery mechanisms it has served to reflect
"happiness.lays.com" and re-serve them. Eolas will be prepared to discuss whether such an effort
makes sense during our meet and confer.
(2) Depositions Thank you for providing us with a general idea as to when Frito-Lay plans to make
its witnesses available for deposition. With respect to Frito-Lay's request that Eolas narrow its
request for deposition discovery, Eolas is only seeking the depositions of five (5) 30(b)1) witnesses
and each have been identified by Frito-Lay as persons with knowledge of relevant facts. As we
discussed during our September 14 informal meet and confer, Eolas has no objection to FritoLay's witnesses serving as both 30(b)(1) and 30(b)(6) deponents, which should reduce the
preparation and deposition time needed to complete Eolas' deposition discovery. Your request that
Eolas identify the subject matters on which Eolas is seeking testimony from each of the five (5)
witnesses, however, is problematic given that Eolas is relying on Frito-Lay's representation in its initial
disclosures that each noticed witness has knowledge of facts that are relevant to the claims and
defenses in this lawsuit and because Frito-Lay has not yet identified each witness' custodial
documents within its document production. Eolas, however, is willing to discuss during our informal
meet and confer any proposals that Frito-Lay may have to address its concerns regarding the scope
of deposition discovery.
(3) Custodial Information In an effort to cooperate in good faith and run this issue to ground, after
receiving your email of Tuesday we went back to our IT personnel a third time on the issue of
custodial information. The custodial information provided by Frito-Lay remains unchanged from that
which we communicated to your team during our September 14 meet and confer -- that 7,558 out
of the total of 7,566 documents produced to date list Scott Thompson as the custodian and that none
of the five (5) witnesses noticed for deposition (which have been identified as persons with knowledge
in Frito-Lay's disclosures) are listed as custodians of any of Frito-Lay's documents. (See our e-mail of
September 16, attached above). Further, our recollection of the parties' September 14
teleconference was that your team was going to look into this issue and advise as whether
the documents for the witnesses Eolas has noticed for deposition have been collected and produced
and, if so, provide the Bates numbers for their custodial documents. Eolas will be prepared
to discuss this matter on our meet and confer.

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Page 2 of 8

(4) Will Call Trial Witness Depositions Thank you for agreeing to Eolas' proposal in this regard.
(5) Interrogatory Responses/Document Production Eolas certainly appreciates the fact that on
June 15, 2011 Frito-Lay produced documents that it believes are responsive to Common
Interrogatory Nos. 1 and 3, as advised in your e-mail of Tuesday; however, Frito-Lay has not
supplemented its responses to Common Interrogatory Nos. 1 and 3 since July 9, 2010 (over one year
ago). Thus, Frito-Lay's current interrogatory responses are stale in that they fail to identify its
June 15, 2011 production and fail to identify any additional documents generated since its June 15,
2011 production that are responsive to these two common interrogatories. Further, the
documents which Frito-Lay produced on June 15, 2011 only provide data through May 2011 and,
thus, Frito-Lay should also supplement its document production and interrogatory responses to
include the most current data available to it.
With respect to Interrogatory No. 4, Eolas would like to fully understand the bases for each of FritoLay's stated objections to providing the information sought for eight (8) of the sixteen (16) categories
identified in Interrogatory No. 4. Eolas hopes that the parties can discuss and work to resolve these
objections during our meet and confer.
Finally, as stated above with regard to Point (1), Eolas believes that the language set forth in its PICs
and discovery mechanisms served to date cover "happiness.lays.com", but is willing to confer in good
faith to resolve any concerns Frito-Lay may have regarding this issue.
As Eolas requested yesterday, please let us know when your team is available over the next couple
of days to participate in an informal meet and confer on each of the foregoing issues.
Regards,
Tom

From: Tom Fasone III
Sent: Tuesday, September 27, 2011 11:38 AM
To: [e-mail]
Cc: Eolas; John B. Campbell; Matt Rappaport; Don Gaiser; Stefano Milito; Vicki Merideth;
[e-mail]; [e-mail]; [e-mail];
[e-mail]; [e-mail]
Subject: RE: Eolas/Frito-Lay: Discovery Issues
Jeffrey
Thank you very much for your email.
We believe that an informal meet and confer within the next few days to attempt to work through the
issues/responses raised in your email of today is necessary in light of the compressed schedule at
hand. Eolas would very much like to avoid bothering Judge Davis with unnecessary discovery related
motion practice but, at the same, will not forego the discovery to which it is entitled to prove up its
case and prepare for trial.
Please let us know your team's availability for an informal meet and confer to occur within the next
few days.

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Page 3 of 8
Regards,
Tom
From: [e-mail] [mailto:[e-mail]]
Sent: Tuesday, September 27, 2011 11:15 AM
To: Tom Fasone III; [e-mail]
Cc: Eolas; John B. Campbell; Matt Rappaport; Don Gaiser; Stefano Milito; Vicki Merideth;
[e-mail]; [e-mail]; [e-mail]; [e-mail]
Subject: RE: Eolas/Frito-Lay: Discovery Issues
Tom,
Thanks for your email. Regarding item (1), as mentioned during our telephone conversation with you on Sep. 14, FritoLay
believed it had produced relevant documents and thus far we are not aware of additional relevant non-privileged
documents. In addition, you raised for the first time a website located at "happiness.fritolay.com" which had not been
identified in the above-referenced action until Eolas's interrogatories served this month. During our Sep. 14 telephone
conversation we stated that the website was not identified in Eolas' infringement contentions and we could not find that
website. "happiness.lays.com" is identified for the first time in your email of Sep. 23. Even if Eolas had asserted a claim
against the happiness.lays.com website, which it failed to do, Eolas has never asserted what feature, if any, of the
website allegedly infringes Eolas's claimed invention. Therefore, even if Eolas had properly plead a claim against the
website located at happiness.lays.com, Frito-Lay would not have knowledge of what relevant non-privileged documents, if
any, to cull.
For item (2), tentatively, we have identified some witnesses and are still working on coordinating the schedule because of
the number and diversity of the topics. It appears, at this time, the depositions may more likely take place in the third or
fourth week of October in Dallas, Texas. In addition, we had discussed with Eolas over the summer that not all 30(b)(1)
witnesses Eolas sought to depose would have information Eolas is seeking. Therefore, the parties agreed to avoid
unnecessary burden on Frito-Lay by reducing the number of depositions. To that end, please let us know the categories
of information Eolas seeks to receive from all the 30(b)(1) witnesses so that we can coordinate on the necessary
depositions and avoid undue burden and disruption on Frito-Lay's business operation.
With respect to item (3), we have confirmed that the CDs we produced contained Concordance Opticon DAT and LOG file
and Summation iBlaze LST file which contain the custodian identification in the "Custodian Field." If you have used these
load files to properly load the data and still encounter errors, please provide the name of the tool and version you use, and
the name of the field where you found the custodian names so we can investigate further.
For item (4), we are agreeable to the proposal that only those individuals whom the parties plan to present as trial
witnesses be presented for deposition. This item also relates to item (2). We believe this item will be resolved as we
resolve item (2).
For item (5), regarding Interrogatory Nos. 1 and 3, as you noted in your e-mail of September 9 and we reiterated in our
email of September 13, Frito-Lay supplemented its responses to these interrogatories by producing additional documents
(FL-EOLAS0019027-0019102) under Fed. R. Civ. Pro., Rule 33 on June 15, 2011. With respect to Interrogatory No. 4,
we stated in our September 14 email that we are confused by your statement in your Sep. 9 e-mail that Frito-Lay's
response only addressed 8 of the 16 technologies identified by Eolas. Frito-Lay's response to this interrogatory provided
information with respect to AJAX, JavaScript, Java/JavaFX, Flash, Quicktime, HTML5, WebM, and H.264 and objected to
the remainder because they are, inter alia, vague, ambiguous and undefined. As mentioned above,
Eolas never identified "happiness.fritolay.com" or "happiness.lays.com" in its infringement contentions. Therefore, Eolas'
interrogatories did not request information about those websites so we are at a loss to understand why Eolas is requesting
Frito-Lay to supplement its responses when it was never requested to provide it in the interrogatories.
Let us know if you have further questions.
Regards,
Jeffrey Yee
Greenberg Traurig LLP | 2450 Colorado Avenue | Suite 400 East | Santa Monica, CA 90404
Tel [phone] | Fax [phone]
[e-mail] | www.gtlaw.com

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Page 4 of 8
USA LAW FIRM OF THE YEAR, CHAMBERS GLOBAL AWARDS 2007
PLEASE CONSIDER THE ENVIRONMENT BEFORE PRINTING THIS EMAIL

From: Tom Fasone III [mailto:[e-mail]]
Sent: Friday, September 23, 2011 7:15 AM
To: Yee, Jeffrey (Assoc-LA-IP-Tech); Joyner, Jeff K. (Shld-LA-IP-Tech)
Cc: Eolas; John B. Campbell; Matt Rappaport; Don Gaiser; Stefano Milito; Vicki Merideth;
[e-mail]; [e-mail]; [e-mail]
Subject: Eolas/Frito-Lay: Discovery Issues

Gentlemen
I write to follow up on last week's teleconference on various outstanding discovery matters.
Please advise as to each of the following issues:
(1) When Eolas may expect to receive Frito-Lay's supplemental document production (including
relevant documents for happiness.lays.com);
(2) Proposed dates for all outstanding 30b1 and 30b6 deposition notices served to date;
(3) The identification of custodial documents by Bates numbers for the 30b1 witnesses noticed to
date to the extent that they already have been produced to Eolas or a proposed date for production of
the custodial documents for each of the 30b1 witnesses noticed to date;
(4) A response to Eolas' proposal regarding the depositions of "will call" trial witnesses (as outlined in
prior correspondence to you and discussed during our September 14 teleconference); and
(5) A proposed date for supplementation of Frito-Lay's interrogatory responses (to address
deficiencies outlined in our September 9 correspondence and discussed during our September 14
teleconference, and, to the extent necessary, to provide complete supplemental responses that
address happiness.lays.com).
As you know, the parties agreed to a November 9, 2011 Fact Discovery deadline. Given the amount
of discovery which must be completed prior to that deadline, we would very much appreciate your
prompt attention to these matters.
As always, we are available to discuss these matters via telephone should you care to do so -- (214)
978-4927.
Regards,
Tom
-----Original Message----From: Tom Fasone III
Sent: Friday, September 16, 2011 6:42 AM
To: [e-mail]; [e-mail]; [e-mail];
[e-mail]; [e-mail]
Cc: Eolas; Josh Budwin; Gretchen Curran; John B. Campbell; Don Gaiser; Stefano Milito; Vicki
Merideth
Subject: Staples/Frito-Lay: Document Production and Custodial Documents

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Page 5 of 8

Gentleman
As we indicated that we would, we went back to the document production we received to date from
Frito-Lay and confirmed what we reported during our call -- which is that a single custodian is listed
for almost the entirety of the production. None of the five 30b1 witnesses that Eolas has noticed to
date: Kevin Johnson, Greg Scott, Ryan Baxter, Richard Blazevich and Gannon Jones are listed as
custodians of any of the documents Eolas has received.
Further, we ran a search of the metadata of the document production received to date and
determined that Frito-Lay has not produced any relevant and non-privileged e-mail correspondence.
We would kindly ask that you please confer with your client contact(s) about the lack of e-mail
correspondence within the production to Eolas and advise as to your findings.
Thank you,
Tom
________________________________________
From: Tom Fasone III
Sent: Thursday, September 15, 2011 12:09 PM
To: [e-mail]; [e-mail]; [e-mail];
[e-mail]; [e-mail]
Cc: Eolas; Josh Budwin; Gretchen Curran; John B. Campbell; Don Gaiser; Stefano Milito
Subject: RE: Eolas/Frito Lay: Request for Informal Meet and Confer on Deficient Interrogatory
Responses/Discovery Matters
Gentleman
Thank you for making yourselves available yesterday for a teleconference to discuss outstanding
discovery issues and a gameplan for completing discovery within the parties' agreed schedule for
completing fact discovery in this matter. We certainly appreciate your willingness to cooperate in this
regard.
As you work through the issues we discussed yesterday, please feel free to call us to further confer
should the need arise.
Regards,
Tom
-----Original Message----From: Tom Fasone III
Sent: Tuesday, September 13, 2011 7:41 PM
To: [e-mail]
Cc: [e-mail]; Eolas; [e-mail];
[e-mail]; Josh Budwin; Gretchen Curran; John B. Campbell; Don Gaiser;
[e-mail]
Subject: RE: Eolas/Frito Lay: Request for Informal Meet and Confer on Deficient Interrogatory
Responses/Discovery Matters
Jeffrey

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Page 6 of 8

Thank you very much for your email of this evening. We appreciate you getting back to us on the
various discovery matters Eolas has raised over the past several days.
With respect to the deficiencies in Frito-Lay's response to Common Interrogatory No. 4, we kindly ask
that you consider the language of the interrogatory again as it clearly requests information concerning
16 technologies/software types as specified in items (a)-(p). Should Frito-Lay still have concerns as
to the scope of Common Interrogatory No. 4, we will be prepared to discuss this matter during
tomorrow's 4 p.m. CT conference.
Thank you for letting us know that the depositions of Frito-Lay's witnesses will be held in Dallas rather
than at Greenberg's Santa Monica office. Eolas very much appreciates being able to conduct the
depositions of Frito-Lay's witnesses in Dallas. Although we don't believe it is necessary, we are more
than happy to re-serve the deposition notices to comport with the location provided in your email of
this evening. Please advise as to your preference in this regard.
Finally, given the number of discovery issues which must be addressed within a relatively
compressed schedule, we would very much like to proceed with our 4 p.m. CT conference call
tomorrow. We look to speaking with you then.
Regards,
Tom
________________________________________
From: [e-mail] [[e-mail]]
Sent: Tuesday, September 13, 2011 6:59 PM
To: Tom Fasone III; [e-mail]
Cc: [e-mail]; Eolas; [e-mail];
[e-mail]; Josh Budwin; Gretchen Curran; John B. Campbell; Don Gaiser
Subject: RE: Eolas/Frito Lay: Request for Informal Meet and Confer on Deficient Interrogatory
Responses/Discovery Matters
Tom,
This responds to your e-mails of Sep. 2, 8 and 9 regarding Frito-Lay's responses to Eolas'
interrogatories, production of documents and scheduling of depositions.
Regarding Interrogatory Nos. 1 and 3, as you noted in your e-mail of Sep. 9, Frito-Lay supplemented
its responses to these interrogatories by producing additional documents (FL-EOLAS00190270019102) under Fed. R.
Civ. Pro., Rule 33 on June 15, 2011. With respect to Interrogatory No.
4, we are confused by your statement in your Sep. 9 e-mail that Frito-Lay's response only addressed
8 of the 16 technologies identified by Eolas. Interrogatory No. 4 did not specifically identify 16
technologies and, therefore, we are at loss to understand why Eolas believes that Frito-Lay should
supplement its response to that interrogatory.
In response to your e-mail of Sep. 8 regarding Frio-Lay's production of documents, Frito-Lay has
produced and will continue to produce relevant non-privileged documents, if any, pursuant to the
discovery rules.
We are in the process identifying the Rule 30(b)(6) witness(es) and the witnesses' availability (Rules
30(b)(6) and 30(b)(1)) in response to your e-mail of Sep. 2 and the notices we recently received

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(three Rule
30(b)(6) deposition notices and Rule 30(b)(1) notices of depositions of Kevin Johnson, Greg Scott,
Ryan Baxter, Richard Blazevich and Gannon Jones). As a general matter, the deposition(s) of FritoLay individuals located in Plano, Texas should take place in Greenberg Traurig' offices in Dallas,
Texas, not in California. Once we have identified witnesses and confirmed availability, we will
coordinate with Eolas to schedule the appropriate deposition(s).
We believe that we have addressed each of the issues you have raised in your e-mail but remain
available to discuss these issues on tomorrow's call if you have questions.
In addition, please be prepared to discuss Eolas' availability for depositions.
Thanks.
Jeffrey Yee
Greenberg Traurig LLP | 2450 Colorado Avenue | Suite 400 East | Santa Monica, CA 90404 Tel
310.586.3846 | Fax [phone]
[e-mail] | www.gtlaw.com
Greenberg Traurig
USA LAW FIRM OF THE YEAR, CHAMBERS GLOBAL AWARDS 2007 Please consider the
environment before printing this email

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-------------------------------------------------------------------------From: Tom Fasone III [mailto:[e-mail]]
Sent: Friday, September 09, 2011 9:25 AM
To: Joyner, Jeff K. (Shld-LA-IP-Tech); Yee, Jeffrey (Assoc-LA-IP-Tech)
Cc: [e-mail]; Eolas; [e-mail];
[e-mail]; Josh Budwin; Gretchen Curran; John B.
Campbell; Don Gaiser
Subject: Eolas/Frito Lay: Request for Informal Meet and Confer on Deficient Interrogatory
Responses/Discovery Matters

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Page 8 of 8
Gentlemen
I understand that you are working with your co-defendants to prepare a response to Eolas' proposed
Docket Control Order and to propose a schedule for completing fact and expert discovery of Frito Lay
given that the parties' efforts to settle were unsuccessful. Eolas certainly appreciates Frito Lay's
efforts to prepare and propose such a schedule; however, given that the Court has set an early
February 2011 trial date and that there are numerous major intervening holidays between now and
the current trial date, Eolas strongly believes that counsel for the parties needs to open a dialogue on
discovery matters now rather than wait to reach an agreement on a final proposed Docket Control
Order.
Of the pending discovery issues that Eolas would like to discuss with Frito Lay are its current
responses to Eolas' Common and Specific Interrogatories. We have analyzed Frito Lay's
interrogatory responses to date and have determined that there are various deficiencies that Eolas
would like addressed as soon as practicable. By way of example, and not by way of limitation, Frito
Lay's most recent responses to Eolas' First Set of Common Interrogatories (Nos. 1-5) are dated July
9, 2010 -- over 14 months ago. Further, in certain instances, Frito Lay has responded to the First Set
of Common Interrogatories by pointing to a "representative sample of reports" rather than providing a
complete textual response and/or providing Bates numbers of all of the responsive documents within
Frito Lay's production from which one could obtain complete information sought by the particular
interrogatory (see, e.g., Responses to Common Interrogatory Nos. 1 and 3). In other instances, Frito
Lay fails to address each component of the interrogatory in its current response (see, e.g., Response
to Common Interrogatory No. 4, which only addresses eight of the 16 technologies identified by
Eolas).
Please let us know your availability next week for an informal meet and confer to discuss deposition
discovery, document production supplementation, interrogatory supplementation, expert submissions,
and scheduling related to each of these matters.
We look forward to hearing from you.
Regards,
Tom
-----Original Message----http://www.gtlaw.com/

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