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 16

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

Matt Rappaport
Tuesday, May 24, 2011 1:02 PM
Perito, Andrew; Tom Fasone III
Huang, Aaron; Eolas; EBay-Eolas; Mehta, Sonal
RE: Eolas/eBay: Source Code -- Request for LR-7 Meet and Confer

Thanks Andrew -We will review eBay's native source code production, as you have indicated such code will
be available for inspection. Alternatively, if the code is available for production on a
disk or is available any sooner than June 10 please let us know.
For the same reasons cited below with respect to eBay's production, Eolas expects Amazon
to produce native source code files corresponding to the documents produced at AMAZONE000002162- AMAZON-E00005300. If Amazon refuses to do so please let us know immediately,
stating the basis for Amazon's refusal.
Regards,
Matt

-----Original Message----From: Perito, Andrew [mailto:[e-mail]]
Sent: Monday, May 23, 2011 9:24 PM
To: Matt Rappaport; Tom Fasone III
Cc: Huang, Aaron; Eolas; EBay-Eolas; Mehta, Sonal
Subject: RE: Eolas/eBay: Source Code -- Request for LR-7 Meet and Confer
Matt,
As mentioned on Friday, I was in the midst of preparing a brief for filing, which
unfortunately lasted until nearly midnight on Friday, so I hope you'll understand my not
getting back to you on Friday afternoon. I am happy to discuss your request below to
review certain eBay source code in native form and we have a proposal below that we hope
will allow the parties to move forward cooperatively. However, I also want to respond to
your comments below suggesting that eBay somehow concealed source code when it was
produced to Eolas more than one year ago. As we have stressed repeatedly to Tom and
Lindsay in recent weeks, we are happy to discuss discovery issues with you as they come up
and work with you to resolve them, but do not believe letter-writing campaigns based in
rhetoric or recrimination are productive. In this case, rather than raise this concern
with us when eBay source code was first made available to Eolas last year, Eolas waited
months before raising this concern in your March 30, 2011 letter and then commenced
writing letter after letter accusing eBay of withholding code that had in fact been
produced. In fact, eBay expressly pointed to the May 2010 code production in the
parties' prior correspondence leading up to the December 9, 2010 email agreement between
the parties. It wasn't until your colleague Tom called us recently to try to work through
the issue that we were able to explain the disconnect between the parties and, in the
spirit of cooperation, point you to the relevant code. Given that history, your suggestion
that eBay has been withholding or concealing code is neither credible nor constructive.
To further address Eolas's request below for additional native source code, by June 10,
2011 eBay offers to make available in native form on its source code review machine the
code for eBay pages previously produced on May 4, 2010. Please let us know if you would
like to discuss further tomorrow, as our calls on this matter have proven the most
productive route to resolving the parties' apparent disputes. I will be in a deposition
tomorrow that starts at 9 am but can talk tomorrow afternoon or evening if you would like.
Best,
Andrew
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Andrew Perito
Weil, Gotshal & Manges LLP
201 Redwood Shores Parkway
Redwood Shores, CA 94065-1134
[e-mail]
[phone] Direct
[phone] Fax

-----Original Message----From: Matt Rappaport [mailto:[e-mail]]
Sent: Friday, May 20, 2011 4:19 PM
To: Matt Rappaport; Tom Fasone III; Perito, Andrew; Mehta, Sonal
Cc: Huang, Aaron; Eolas; EBay-Eolas
Subject: RE: Eolas/eBay: Source Code -- Request for LR-7 Meet and Confer
Andrew,
As you were unable to attend today's meet and confer, this afternoon I separately called
you to inquire as to whether eBay will be producing additional source code. You indicated
you would get right back to me on this issue.
Please respond to indicate eBay's position. If you are unable to do so today, please do so
no later than Monday. If eBay declines to produce additional source code please also
provide the availability of lead/local counsel for what should be a very brief meet and
confer, to occur next week.
Regards,
Matt
-----Original Message----From: Matt Rappaport
Sent: Friday, May 20, 2011 11:04 AM
To: Tom Fasone III; Perito, Andrew; Mehta, Sonal
Cc: Huang, Aaron; Eolas; EBay-Eolas
Subject: RE: Eolas/eBay: Source Code -- Request for LR-7 Meet and Confer
Andrew,
Now that the disconnect has been resolved, Eolas is disappointed that eBay has dodged
Eolas' requests for source code production only to now point to its document production at
bates ranges EBAY-E00003415 - EBAY-E00009081, as if this constituted sufficient source
code production. This document production provides TIFF images and OCR'ed text files of
page sources from eBay's websites. It is far from a sufficient source code production.
Please add this item to today's meet and confer call, as Eolas still requires prompt
production of eBay's source code for each of the accused websites as it is maintained in
the ordinary course of business.
To be clear, there are several reasons eBay's document production at bates ranges EBAYE00003415 - EBAY-E00009081 cannot constitute a sufficient production of source code.
1) The document production fails to provide the source code as it is maintained in the
ordinary course of business. Ebay provided source code for neighborhoods.ebay.com as it is
maintained in the ordinary course of business. Eolas expects this form of production for
each of eBay's accused websites. Here, eBay has created documents for, apparently, the
sole reason of providing them to Eolas. These documents differ from the source code Eolas
seeks. This alone is sufficient to render the document production an insufficient
substitute for source code production.
2) Furthermore, Eolas is unable to meaningfully review the document production as if it
were source code because the documents have been created in a manner that removes
information vital to Eolas' source code review. The TIFF images and OCR'ed text that eBay
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has produced, either intentionally or otherwise, do not provide the full path and filename
for the code printouts they reference. This is evidenced by the ellipses in the
footer/header of the path and filename on the produced documents. These ellipses, which
appear in both the TIFF and OCR documents produced, remove information vital to Eolas'
source code review.
3) Finally, Eolas is unable to meaningfully review the document production as if it were
source code because they Eolas' source code review tools cannot function on TIFF images
and OCR'ed text. Eolas' source code review tools are designed to read code as it is
maintained in the ordinary course of business.
Separately, Eolas is disappointed because eBay's newfound reliance on its document
production at bates ranges EBAY-E00003415 - EBAY-E00009081 is at odds with its own
designation of this document production.
eBay's document production at bates ranges EBAY-E00003415 - EBAY-E00009081 occurred over
one year ago, on May 4, 2010. The cover letter for that document production is attached.
Instructively, the May 4 cover letter makes no mention of any source code included in
eBay's production.
By way of comparison, the cover letter from eBay's April 25, 2011 source code production
is also attached. That cover letter makes specific mention of the production of source
code accompanying the letter, and states that the source code produced bears the bates
range of the form "EBAY-SC00000000." In addition, the cover letter for eBay's production
bearing bates range EBAY-E00009135 - EBAY -E00009269 identifies the accompanying
production is to be treated as source code. No such indicia is present for eBay's document
production at bates ranges EBAY-E00003415 - EBAY-E00009081.
If, despite the above, eBay's position is that it always relied upon its document
production at bates ranges EBAY-E00003415 - EBAY-E00009081 as source code, then eBay has
concealed this from Eolas for over a year. As given above, Eolas had no reason to rely on
Ebay's document production at EBAY-E00003415 - EBAY-E00009081 as if it were source code.
(Indeed, for the reasons given above, this production is not a sufficient substitute for
source code production). Time and again, Eolas sought the location of eBay's source code,
asking for the proper directory structure to locate the code on eBay's source code
computer. See my correspondence of May 3, 2011, recounting Eolas' inquiries over the past
months.
Please be prepared to prepared to discuss this matter on today's call, as Eolas still
requires source code for each of the accused websites as it is maintained in the ordinary
course of business.
-----Original Message----From: Tom Fasone III
Sent: Saturday, May 14, 2011 5:12 PM
To: Perito, Andrew; Mehta, Sonal
Cc: Huang, Aaron; Eolas; EBay-Eolas; Matt Rappaport
Subject: RE: Eolas/eBay: Source Code -- Request for LR-7 Meet and Confer
Thank you for your email, Andrew.
I will confer with our folks that are intimately involved in the source code review
process on this case and let you know what I learn. Hopefully, this will resolve any
outstanding source code production issues so that we don't have to burden the Court with
motion practice.
Have a nice weekend.
Tom
________________________________________
From: Perito, Andrew [[e-mail]]
Sent: Saturday, May 14, 2011 12:32 PM
To: Tom Fasone III; Mehta, Sonal
Cc: Huang, Aaron; Eolas; EBay-Eolas
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Subject: 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,
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
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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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