Eolas Technologies Incorporated v. Adobe Systems Incorporated et al

Filing 714

MOTION to Compel PRODUCTION OF SOURCE CODE FROM EBAY INC. AND AMAZON.COM, INC. by Eolas Technologies Incorporated. (Attachments: # 1 Declaration of Joshua Budwin, # 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, # 27 Exhibit 26, # 28 Exhibit 27, # 29 Exhibit 28, # 30 Exhibit 29, # 31 Text of Proposed Order)(McKool, Mike)

EXHIBIT 9

MCKOOL SMITH
A PROFESSIONAL CORPORATION • ATTORNEYS

Matt Rappaport
Direct Dial: [phone]
[e-mail]

300 West 6th Street
Suite 1700
Austin, Texas 78701

Telephone: [phone]
Telecopier: [phone]

April 26, 2011

VIA EMAIL
Andrew Perito
Weil, Gotshal & Manges LLP
201 Redwood Shores Parkway
Redwood Shores, CA 94065
RE:

Eolas Technologies Incorporated v. Adobe Systems, Inc., et al.; Civil Action
No. 6:09-CV-446-LED; United States District Court of Texas; Eastern District.
eBay Source Code Production

Dear Andrew,
I write in furtherance of the discussions Eolas’ technical team had with you onsite during
last week’s April 18-21 review of eBay’s source code. Particularly, I write because our technical
team was unable to locate relevant source code for seventeen accused eBay websites.
Upon their inquiries, I understand that you were unable to point our technical team to
code for these accused websites and could not verify that the code that was produced
corresponded to these accused websites. This was after Eolas’ technical team walked you
through the directory structure of eBay’s production, a screen-capture of which is displayed at
EBAY-SC0000077. I understand that thereafter, upon our technical team’s renewed request, you
were also unable to produce source code for these seventeen accused websites. This is so even
though this code was requested in detail by my March 30 correspondence. Because of eBay’s
deficient code production, Eolas’ technical team cut their review of eBay’s code short.
In sum, for the seventeen accused websites listed below eBay has not produced source
code that embeds Flash objects, as requested in detail through my March 30 correspondence:
1. http://success.ebay.com
2. http://www.motors.ebay.com

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3. http://givingworks.ebay.com
4. www.ebay.com
5. http://antiques.shop.ebay.com
6. http://services.ebay.com
7. http://coins.ebay.com
8. http://www.ebaygreenteam.com
9. http://baby.shop.ebay.com
10. http://business.shop.ebay.com
11. http://dolls.shop.ebay.com
12. http://art.shop.ebay.com
13. http://photography.shop.ebay.com
14. http://cell-phones.ebay.com
15. http://computers.ebay.com
16. http://video-games.ebay.com
17. http://electronics.ebay.com
In contrast, eBay did provide the source code that embeds Flash objects for the accused
website http://neighborhoods.ebay.com, as requested. This is the only accused website for which
eBay’s production was sufficient.
Thus, Eolas cannot reconcile what it encounters upon review of eBay’s source code with
eBay’s representations regarding the sufficiency of its production. For example, Joe Lee’s
December 9, 2010 email states that eBay has “made available for inspection all versions of the
source code that implement the functionality [eBay understood] were accused of infringement.”
Also, your April 16, 2011 email states that eBay does “not understand that source code
implementing the accused functionalities is missing from the source code already produced
and/or made available.” The fact that source code for embedding Flash objects is absent for
seventeen accused websites is at odds with these representations.
This situation is particularly troublesome because Eolas sought to avoid this very issue by
detailing the source code Eolas expected eBay to produce ahead of time, in my March 30
correspondence. In the weeks prior to the April 18 source code review I repeatedly brought this
matter to your attention (see my correspondence of March 30, April 7, April 13, and April 15).

Austin 67179v1

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These efforts to engage eBay went unacknowledged until your aforementioned email of April 16,
2010 — sent the Saturday before the Monday review of eBay source code began.
Eolas has now reviewed eBay’s source code on three separate occasions. Despite
detailing the source code it requires, Eolas is still left without a complete source code production
to review. As such, please write back to confirm that eBay will not point to the absence of nonproduced source code to argue that Eolas has failed to meet its burden of proof on infringement.
This will be sufficient for Eolas, settling this issue.
Failing this, Eolas must receive prompt confirmation that either:
(i)

the embedding of Flash objects for the seventeen accused sites for which code is
missing occurs in the same manner that such embedding occurs on the website
http://neighborhoods.ebay.com, for which code was produced; OR

(ii)

eBay will produce the requested code for the seventeen accused sites for which
code is missing, sending printouts directly to Eolas; OR

(iii)

eBay will produce the code for the seventeen accused sites for which code is
missing and bear the expenses associated with sending Eolas’ technical team to
perform a fourth review of eBay’s source code production; OR

(iv)

you will make your lead/local counsel available to meet and confer on this issue
without delay.

Your prompt response is required. The date for expert reports is fast approaching and this
matter implicates materials necessary for Eolas’ preparation of its expert report. Please respond
to indicate your position no later than Thursday, April 28.
Sincerely,

Matt Rappaport
cc:

Edward R. Reines
Matthew Douglas
Powers
Christian J. Hurt

Austin 67179v1

[e-mail]
[e-mail]

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April 26, 2011
Aaron Y. Huang
Sonal N. Mehta

Austin 67179v1