Eolas Technologies Incorporated v. Adobe Systems Incorporated et al

Filing 1329

RESPONSE in Opposition re 1317 Emergency MOTION to Strike DEFENDANTS' LATE-PRODUCED DOCUMENTS, VIDEO DEMONSTRATIONS, SOURCE CODE AND PREVIOUSLY UNIDENTIFIED PRIOR ART filed by Amazon.com Inc., Yahoo! Inc.. (Attachments: # 1 Declaration Of Andrew L. Perito In Support Of Opposition, # 2 Exhibit Exhibit A, # 3 Exhibit Exhibit B, # 4 Exhibit Exhibit C, # 5 Exhibit Exhibit D, # 6 Declaration Of Scott Walker In Support of Opposition)(Doan, Jennifer)

EXHIBIT D

From:
Sent:
To:
Cc:
Subject:

Josh Budwin <[e-mail]>
Saturday, February 04, 2012 3:42 PM
Josh Budwin; Perito, Andrew; [e-mail]
Kevin Burgess; Mehta, Sonal; Defendants-Eolas; Eolas
RE: Eolas: Defendants' demonstratives

My message got cut off:
Andrew Our technical expert had a family issue, and had to return home today. We expect him to return tomorrow (Sunday), and
will likely proceed with the second inspection then.
Thanks.

From: Josh Budwin
Sent: Saturday, February 04, 2012 3:41 PM
To: 'Perito, Andrew'; [e-mail]
Cc: Kevin Burgess; Mehta, Sonal; Defendants-Eolas; Eolas
Subject: RE: Eolas: Defendants' demonstratives
Hi Andrew -

From: Perito, Andrew [mailto:[e-mail]]
Sent: Saturday, February 04, 2012 2:01 PM
To: Josh Budwin; [e-mail]
Cc: Kevin Burgess; Mehta, Sonal; Defendants-Eolas; Eolas
Subject: RE: Eolas: Defendants' demonstratives

Josh, please advise when before 8:00 pm tonight your team will be coming to inspect the machines and code we have
been discussing and that have been available for inspection since early yesterday afternoon. Thank you.
From: Perito, Andrew
Sent: Saturday, February 04, 2012 10:23 AM
To: Perito, Andrew; Josh Budwin; [e-mail]
Cc: Kevin Burgess; Mehta, Sonal; Defendants-Eolas; Eolas
Subject: RE: Eolas: Defendants' demonstratives

Josh, we have technical staff in from out of town and on stand-by for the inspection. Please let us know when today
your team will be coming to inspect.
Thanks,
Andrew
From: Perito, Andrew [mailto:[e-mail]]
Sent: Friday, February 03, 2012 9:58 PM
To: Josh Budwin; [e-mail]
Cc: Kevin Burgess; Mehta, Sonal; Defendants-Eolas; Eolas
Subject: RE: Eolas: Defendants' demonstratives
1

Josh, we've followed up regarding your questions and have included responses below. As I explained this afternoon, the
machines are available, and we stand ready for your inspection. Is there a time tomorrow morning that your team can
come by?
(1)

Yes, we have "client," "server" and "remote" machines available for inspection.

(2)
VID 00000012 illustrates Viola, so I am confused by your question regarding a tkWWW patch, which doesn't
relate to that video. Perhaps we've got wires crossed here. Any additional information you could provide to help us
answer your question?
As to VID 00000018, if by "shim" you are referring to the file that refers vplot for remoted execution, that file is
on the machines available for inspection and was created 1/29/12.
Below is the cross-reference table for the videos with the code bates numbers and production dates.
Best,
Andrew

Code (first production
date on 7/12/10 unless
otherwise noted)

Video Bates Number

viola 950414 3.3
(public), vplot 930507,
950920 plot.v from
viola.org (public,
8/18/11)

VID00000012

viola 930512, vplot
930507

VID00000013;
VID00000022 (viola 930512 only)

YAHOO-E03114698;
PA-NAT-00000116;
PA-NAT-0000078

viola 930512, vplot
930812

VID00000014

YAHOO-E03114699;
PA-NAT-00000117;
PA-NAT-0000078

viola 930527, vplot
930507

VID00000015

YAHOO-E03114696;
PA-NAT-00000114;
PA-NAT-0000078

viola 931016, vplot
930507

VID00000016

YAHOO-E03114695;
PA-NAT-00000113;
PA-NAT-0000078

viola 931016

VID00000017

YAHOO-E03114703;
PA-NAT-00000121;
PA-NAT-0000078

viola 930512, vplot
930507, 2012 vplot
script for remoted
execution (2/1/12)

VID00000018

Code Bates Number
YAHOO-E03114701;
PA-NAT-00000119;
PA-NAT-0000078;
8/18/11 Wei
Production
YAHOO-E03114697;
PA-NAT-00000115;
PA-NAT-0000078

2

YAHOO-E03114702;
PA-NAT-00000120;
PA-NAT-0000078

viola 931016, viola
930527, vplot 930507

YAHOO-E03114700;
PA-NAT-00000118

viola 920730 (public)

VID00000026 (viola 931016 only);
VID00000027
VID00000029

-----Original Message----From: Josh Budwin [mailto:[e-mail]]
Sent: Friday, February 03, 2012 6:52 PM
To: Perito, Andrew; [e-mail]
Cc: Kevin Burgess; Mehta, Sonal; Defendants-Eolas; Eolas
Subject: RE: Eolas: Defendants' demonstratives
Andrew Thanks. Two points of clarification.
(1) Yesterday, the "remote" machine was not present. Is it present now?
(2) We will come inspect once we are provided with the information related to videos 12/18 and the code
listing. Please provide it as soon as you are able.
Thank you.
-----Original Message----From: Perito, Andrew [mailto:[e-mail]]
Sent: Friday, February 03, 2012 7:50 PM
To: Josh Budwin; [e-mail]
Cc: Kevin Burgess; Mehta, Sonal; Defendants-Eolas; Eolas
Subject: RE: Eolas: Defendants' demonstratives
Josh, as to your first question, yes, we have "client," "server" and "remote" SPARCStations 10 machines available for
your inspection.
There is no question that these machines--some 20 years old--are fragile, though I understand you may not agree with
my particular choice of words. We appreciate your seeking to minimize the time on these machines, and I will look into
your questions regarding videos 12 and 18 and providing a list of these videos with associated code production numbers
and dates. As to the "agreement," we are providing access to these demonstratives more than two days in advance of
their intended use at trial.
Will your team be coming tonight to inspect the machines?
Thanks,
Andrew
-----Original Message----From: Josh Budwin [mailto:[e-mail]]
Sent: Friday, February 03, 2012 5:17 PM
3

To: Perito, Andrew; [e-mail]
Cc: Kevin Burgess; Mehta, Sonal; Defendants-Eolas; Eolas
Subject: RE: Eolas: Defendants' demonstratives
Andrew My understanding is that at least one of the machines used in some of the videos you identify below was not
available. Will the "remote" machine be available for inspection?
For video 12, do you have the patch used for tkWWW? What's the date of the patch?
For video 18, do you have the shim program? What's the date of the shim?
Additionally, it will minimize our inspection time on your "fragile" machines if you tell us which code productions (by
date and bates range) correspond to each of the videos you've identified below. Please provide this information.
Finally, I'm not sure what "agreement" you are referring to. As stated in our motion to preclude, we believe the belated
production of videos/machines is improper and the inspection we attempted last night does not change this.
Please advise.
-----Original Message----From: Perito, Andrew [mailto:[e-mail]]
Sent: Friday, February 03, 2012 4:38 PM
To: Josh Budwin; [e-mail]
Cc: Kevin Burgess; Mehta, Sonal; Defendants-Eolas; Eolas
Subject: RE: Eolas: Defendants' demonstratives
Josh, given the age and fragility of the computers, I am sure you appreciate that the hardware failures we experienced
when your team visited last night were beyond our control. They appear to have been caused by the trip to Tyler, which
we did at Plaintiffs' request.
Defendants intend to introduce the videos I list below on Monday. Defendants are making the machines and code for
those videos are available now, and we invite you to come and inspect them today. If there are videos that Defendants
plan to introduce at a later date, Defendants will make corresponding machines and code available accordingly, per the
parties' agreement.
Best,
Andrew
-----Original Message----From: Josh Budwin [mailto:[e-mail]]
Sent: Friday, February 03, 2012 2:12 PM
To: Perito, Andrew; [e-mail]
Cc: Kevin Burgess; Mehta, Sonal; Defendants-Eolas; Eolas
Subject: RE: Eolas: Defendants' demonstratives
What about the other videos? Given the time we wasted last night, we don't want to track back and forth multiple
times. Please let us know when we'll be able to inspect the machines with the all of the configurations set forth in all of
the videos.
Thank you.
4

-----Original Message----From: Perito, Andrew [mailto:[e-mail]]
Sent: Friday, February 03, 2012 4:10 PM
To: Josh Budwin; [e-mail]
Cc: Kevin Burgess; Mehta, Sonal; Defendants-Eolas; Eolas
Subject: RE: Eolas: Defendants' demonstratives
Josh, we have code and machines available for inspection and can walk your technical team through the steps to
configure them in the same manner as for Videos 0012-18, 22, 26-27 and 29.
Best,
Andrew
-----Original Message----From: Josh Budwin [mailto:[e-mail]]
Sent: Friday, February 03, 2012 1:27 PM
To: Perito, Andrew; [e-mail]
Cc: Kevin Burgess; Mehta, Sonal; Defendants-Eolas; Eolas
Subject: RE: Eolas: Defendants' demonstratives
Andrew Please confirm that all of the machines will be configured in the same manner as VID 0001-0029.
Thank you.
-----Original Message----From: Perito, Andrew [mailto:[e-mail]]
Sent: Friday, February 03, 2012 3:05 PM
To: [e-mail]; Josh Budwin
Cc: Kevin Burgess; Mehta, Sonal; Defendants-Eolas
Subject: RE: Eolas: Defendants' demonstratives
Josh, we were able to work around the hardware problems we encountered last night during the inspection and have
the machines and code available for inspection now. Please let us know when your team would like to come by to
inspect. We can run the "ls -laRF /" command your technical staff requested as our technical staff walk them through
the steps used to run the demonstrations.
Best,
Andrew
Andrew Perito
Weil, Gotshal & Manges LLP
201 Redwood Shores Parkway
Redwood Shores, CA 94065-1134
[e-mail]
[phone] Direct
[phone] Fax
-----Original Message----5

From: Jennifer Doan [mailto:[e-mail]]
Sent: Friday, February 03, 2012 12:33 AM
To: 'Josh Budwin'
Cc: Kevin Burgess; Mehta, Sonal; Defendants-Eolas
Subject: RE: Eolas: Defendants' demonstratives
Thanks Josh -- Yes, as you know, apparently one of the computers failed while you were there. These are very delicate,
old machines. We are endeavoring to meet your requests and will advise in the morning. JD
-----Original Message----From: Josh Budwin [mailto:[e-mail]]
Sent: Thursday, February 02, 2012 9:31 PM
To: Jennifer Doan
Cc: Kevin Burgess; Sonal Mehta; Defendants-Eolas
Subject: RE: Eolas: Defendants' demonstratives
Jennifer At your invitation, we stopped by your office for an inspection tonight. And, contrary to your express representations,
not all of the code and machines shown in the videos were present. Our technical team also noted other serious
deficiencies which were explained to Sonal.
Please let us know immediately once the noted deficiencies are corrected and all of the machines and code are available
for inspection.
Thank you.
-----Original Message----From: Jennifer Doan [mailto:[e-mail]]
Sent: Thursday, February 02, 2012 6:33 PM
To: Josh Budwin
Cc: Kevin Burgess; Sonal Mehta; Defendants-Eolas
Subject: Re: Eolas: Defendants' demonstratives
Josh:
You should be able to access all of the code. Call me with any questions
Jennifer
Sent from my iPhone
On Feb 2, 2012, at 6:02 PM, "Josh Budwin" <[e-mail]> wrote:
> Jennifer>
> Is this running instances of ALL or just SOME of the newly produced material? As you're aware, the newly produced
material includes much more than just "the Viola code bases."
>
> Please provide a specific and detailed list of what is available for inspection and how this corresponds to each of the
recent productions.
>
6

> Thanks.
>
> -----Original Message----> From: Jennifer Doan [mailto:[e-mail]]
> Sent: Thursday, February 02, 2012 5:17 PM
> To: Josh Budwin; Kevin Burgess
> Cc: Sonal Mehta; Defendants-Eolas
> Subject: Eolas: Defendants' demonstratives
>
>
> Josh and Kevin:
>
> As I mentioned in our meet and confer this afternoon, we have set up 1992 Sun Sparc Stations in Tyler with the Viola
code bases, including the vplot code at issue in this case. I've confirmed those machines have been unpacked and are
up and running.
>
> You are welcome to inspect them to confirm the video demonstratives that we intend to introduce in this case. If you
wish to do so, please contact Sonal Mehta at 650.248.7319 and she will make arrange for you go get in the building etc.
>
> I'll be in Tyler tomorrow, if you wish to inspect them tomorrow,
> please just let me know. My cell is 903.278.7485
>
> Thanks much->
> Jennifer
>

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