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 13

Matt Rappaport
From:
Sent:
To:
Cc:
Subject:

Perito, Andrew [[e-mail]]
Saturday, May 14, 2011 12:33 PM
Tom Fasone III; Mehta, Sonal
Huang, Aaron; Eolas; EBay-Eolas
RE: Eolas/eBay: Source Code -- Request for LR-7 Meet and Confer

Tom,
Following up your email and our on Tuesday of this week, it appears that there continues
to be a disconnect regarding the production of eBay's code, so I write to provide
additional specificity to clarify certain issues in the hope of resolving the parties'
apparent miscommunication. Obviously, it is not our duty to walk Eolas or your source code
reviewers through the source code we provide, but we are providing additional detail at
this point in the spirit of cooperation.
The portions of eBay source code for the websites identified in Eolas' infringement
contentions that we discussed on our Tuesday call can be found between EBAY-E00003415 EBAY-E00009081. These documents were previously produced to Eolas as single page tiff
images on May 4, 2010. Accordingly, when one of your reviewers asked whether code for
each of the accused websites has been produced, citing specifically the html code for the
accused sites, I told the reviewer that such code had been produced and we invited him to
have your team call us if you wanted to discuss further.
In addition, the reviewers had access to the code made available on eBay's source code
computer including, among other things, code for eBay's v4 Flash Infrastructure in the
"Leg_v4darwin" folders that is used to generate the pages that incorporate Flash across
eBay's sites. This code operates at a higher level than the May 4, 2010 production of
code and thus was produced out of an abundance of caution.
Finally, as you note, for neighborhoods.eBay.com--from which accused code was already
produced in the May 4, 2010 production--eBay has also made available on its source code
computer additional exemplary code from this site.
We hope that this further explanation will alleviate any confusion you may have regarding
eBay's source code production, but of course we remain willing to continue to work with
your team to resolve any issues that remain.
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----From: Tom Fasone III [mailto:[e-mail]]
Sent: Thursday, May 12, 2011 4:43 AM
To: Mehta, Sonal
Cc: Huang, Aaron; Perito, Andrew; Eolas; EBay-Eolas
Subject: Eolas/eBay: Source Code -- Request for LR-7 Meet and Confer
Sonal,
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I write to follow up on our
scope of eBay's source code
this matter, I went back to
as I indicated that I would

meet and confer of Tuesday evening (May 10) concerning the
production in this matter. In a good faith effort to resolve
our team to "run the traps" on eBay's source code production,
during our meet and confer on Tuesday evening.

It is my understanding that our experts have performed a review of eBay's source code
several times. As a result of this review, printouts bearing bates labels EBAY-SC00000001
to EBAY-SC00001217 are now in Eolas' possession. These pages are the printouts from the
source code that eBay has made available to date. This is not additional code, it is
simply the portions of the code that eBay has made available that Eolas chose to print.
Eolas is not in receipt of any other source code that eBay claims to have produced (e.g.,
code that eBay made available only in printed form and provided to Eolas). If eBay
believes that it sent such source code directly to Eolas in printed form, we have not yet
received it and no effort to identify it has been made by eBay.
Further, it is my understanding that Eolas addressed the deficiencies in eBay's source
code on site with Andrew Perito of your firm. Eolas' technical consultants explained to
Andrew that the only complete production for the accused websites was the production for
the site neighborhoods.eBay.com. Eolas' technical consultants showed the directory
structure for the other accused sites, comparing to to the directory structure of
neighborhoods.eBay.com. This demonstrated the deficiencies in the other websites' source
code production. Andrew offered no explanation as to why the source code was not there for
sites other than neighborhoods.eBay.com site -- he simply stated that it was all there.
Moreover, because of the deficiencies in eBay's production Eolas' technical consultants
actually cut their review a day short and headed home early.
The foregoing issues are detailed in numerous correspondence from Eolas to eBay, which are
in your possession. Eolas has expended a substantial amount of time and effort to work
with eBay to resolve the deficiencies in eBay's source code production; however, despite
its efforts, it appears that eBay remains unwilling to cooperate by producing complete
source code. Given that opening expert submissions are due May 25, Eolas is left with no
choice but to seek the Court's intervention, on an expedited basis, in order to resolve
this matter.
Please let us know when your local and lead counsel are available for an LR-7 meet and
confer. We suggest addressing this topic during the same LR-7 meet and confer previously
requested by Lindsay in her correspondence to you this week.
We look forward to hearing from you soon.
Thank you.
Tom
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